Huang Zhengwei v. Luen Hing Construction & Eng. Ltd

DCEC 2858/2019

[2020] HKDC 644

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 2858 OF 2019

--------------------------

IN THE MATTER OF AN APPLICATION BETWEEN

--------------------------

Before: Her Honour Judge Levy in Chambers (paper disposal)

Date of Respondent’s Written Submissions: 3 July 2020

Date of Applicant’s Written Submissions in Opposition: 17 July 2020

Date of Respondent’s Written Submissions in Reply: 30 July 2020

Date of Decision: 11 August 2020

--------------------

DECISION

--------------------

A. Order 13A procedure

1.Order 13A of the Rules of the District Court[1] provides an admission procedure to enable an early settlement of claims[2]. Order 13A r.3 prescribes the period for the making of admission in relation to different proceedings.

2.Order 13A r.3:-

“The period for making admission

(1) The period for filing and serving an admission under rule …

6… is—

(a) where the defendant is served with a writ, the period fixed by or under these rules for service of his defence;

(b) where the defendant is served with an originating summons, the period fixed by or under these rules for filing of his affidavit evidence; and

(c) in any other case, 14 days after service of the originating process.

(2) A defendant may file an admission under rule … 6 …—

(a) after the expiry of the period for filing it specified in paragraph (1)(a) if the plaintiff has not obtained a default judgment under Order 13 or 19; and

(b) after the expiry of the period for filing it specified in paragraph (1)(b) if the admission is filed and served before the date or the period fixed under Order 28, rule 2 for the hearing of the originating summons.

(3) If the defendant files an admission under paragraph (2), this Order applies as if he had made the admission specified in paragraph (1)(a) or (b), as the case may be.”

3.Under r.3(1), the three different types of proceedings are: (a) a writ; (b) an originating summons; and (c) an originating process not covered by (a) and (b).  Different time limits for the filing and serving an O.13A admission are prescribed.

4.The present case is an employees’ compensation application.  It is therefore neither a writ nor an originating summons but falls within the description in (c), and the time limit prescribed in (c) therefore applies, that is 14 days after service of the application on the respondent.

5.In this case, it was admitted that the admission in Form No. 16C (Admission) filed on 18 May 2020 under O13A r.6(2)[3] was filed after the period of time prescribed in (c) had expired (on  31 December 2019).  In the Admission, the respondent admitted liability for the whole claim but requested the court to determine the amount of compensation payable.

6.When the applicant’s solicitors, Or & Lau (OrL), refused to consent to the request by the respondent’s solicitors, WMC Partners (WMCP), for a time extension, the respondent on 1 June 2020 issued a summons for retrospective leave to file the Admission.

7.Taking the view that the provisions in O.13A r.3(1)(c) and (2) do not permit the filing of the Admission after the expiry of the time limit, OrL issued a summons on 3 June 2020 for the setting aside of the Admission.

8.This court directed the paper disposal of these summonses.  The parties’ written submissions, and the respondent’s reply submissions were lodged.

B. Whether a court has discretion to extend time

9.OrL objected to the granting of a time extension on the basis that under r.3(2), the provisions for allowing the filing of an admission after the expiry of a time limit are only applicable to (a) a writ; and (b) an originating summons, but none is provided for an originating process in (c), the present case.  They therefore asked for the Admission to be set aside, and the entry of an interlocutory judgment with costs.

10.WMCP however submitted that an absence of an express provision should not restrict a court’s unfettered discretion under O.3 r.5(1), to extend time “to do any act in any proceedings” by granting leave to the respondent to file the Admission after the expiry of the time limit.

11.The power of the court to extend time, WMCP stated, is consistent with the aim of the O.13A admission and the underlying objectives of the Civil Justice Reform of, among others, shortening legal proceedings, saving the time of litigation and the costs of the parties.

12.WMCP submitted that since there is no prejudice to the applicant, an extension of time will expedite the proceedings.

C. Discussion

13.As alluded to in Section A above, r.3(1)(c) governs the present proceedings.  Different to (a) a writ and (b) an originating summons, there is no provision setting out the circumstances under which an admission in relation to an originating process in (c) can be filed after the expiry of the relevant time limit.

14.Since proceedings under (c) are expressly provided to cover all types of originating process not covered by (a) and (b), the originating process specified in (c) must have likely been enacted to cater for wide-ranging types of originating processes.  As such, it would not have been feasible, like (a) and (b) types of proceedings, to specify any one particular circumstance or condition under which an admission may be filed after the expiry of the time limit.

15.Instead of barring a court’s power to enlarge time due to the absence of an express provision for an originating process under (c), I consider that such provision might have likely been deliberately left out to allow maximum flexibility so that a party can still take advantage of the O.13A procedure after the expiry of time.  The court, when exercising its discretion in deciding whether a party should be allowed to file an admission for an originating process under (c) after the expiry of the time limit, would have regard to all the relevant circumstances so as to do justice between the parties.

16.Thus, analyzed, I reject the submissions of OrL and am of the view that I have unfettered discretion to enlarge time for the filing of the Admission. This discretionary power, in my view, is consistent with the legislative aim WMCP referred to in their submission.  To set aside the Admission and enter interlocutory judgment as the applicant suggested, in my view, will not only escalate costs, the respondent will be, more importantly, deprived of the advantage of paying fixed costs provided in the O.13A scheme.  The payment of fixed costs will not only save further costs but also provide certainty to litigation.

17.For the reasons stated above, I allow the respondent’s application and dismiss the applicant’s summons.

18.It is apparent from the discussion above that had OrL been more vigilant to their duty in observing an underlying objective in O.1A r.3 by assisting the Court to further the underlying objectives set out in O.1A r.1, these applications would have been obviated, and costs would have been saved.

D. Order and directions

19.I grant the order as follows.

(1) Order in terms of the respondent’s summons.

(2) The applicant’s summons is dismissed.

(3) A costs order nisi that the applicant do pay the respondent’s costs of and occasioned by both of these two summonses referred to in (1) and (2) above.  These costs, if not agreed, are to be summarily assessed in lieu of taxation.

(4) Unless an application to vary the above nisi order is made by summons within 14 days of the handing down of this Decision, the said nisi order shall become absolute.

(5) Upon the costs order nisi becoming absolute, and in the event that the parties cannot agree on the costs, the respondent shall within 14 days thereafter lodge with the court and serve on the applicant a statement of costs, and the applicant shall within 7 days thereafter, likewise lodge and serve its objections to the costs statement.  The summary assessment of costs, unless this court otherwise directs, shall be disposed of on paper.

(6) The applicant shall within 14 days of this Decision file a prescribed Form No. 16D to obtain judgment in accordance with O.13A, r.3(3).  If the applicant does not file a request for judgment within 14 days after this Decision, I direct that the provision under O.13A, r.6(4) shall apply and that the claim is stayed until he files the request.

(7) The parties do submit a joint written application for further case management directions within 28 days of the handing down of this Decision.

Or & Lau, for the applicant

WMC Partners, for the respondent