Wilmes, Franz Josef v. Coroner, West Kowloon Court

HCA 1915/2019

[2021] HKCFI 2113

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1915 OF 2019

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Before: Hon Coleman J in Chambers (Open to Public)

Date of Hearing: 29 June 2021

Date of Decision: 29 June 2021

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D E C I S I O N

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1.On 10 March 2021, I gave judgment following a hearing held on 23 February 2021 in this action. The hearing related to an appeal from the order made by a master acceding to the application made by the defendant coroner to strike out the claim brought by the plaintiff, Mr Wilmes, and to dismiss the action on the ground that the claim discloses no reasonable cause of action or that it was frivolous and vexatious or otherwise an abuse of the process of the court.

2.In my judgment, after various explanations and considerations, I ultimately dismissed the appeal from the master.  The result of my judgment is therefore that the claim and the action brought by Mr Wilmes currently stands dismissed.

3.The hearing today is brought on by Mr Wilmes’ summons dated 24 March 2021, seeking leave to appeal from my judgment.  It is I think now common ground, and certainly conceded by Mr Yim on behalf of the coroner, that the judgment is one from which it is not necessary to seek leave to appeal.  That is because it is a judgment or order determining in a summary way the substantive rights of a party to the action, in this case, the substantive rights of Mr Wilmes in bringing his claim because under the rules, an order striking out an action or other proceedings or a pleading or any part of a pleading under Order 18 rule 19 or under the inherent jurisdiction of the court is a summary determination of the substantive rights of the parties.

4.At the hearing, I have sought to explain to Mr Wilmes that where he does not need permission or leave to appeal, then what I think is the best thing is for him either to withdraw the summons or for me to make no order on it, and to allow him instead to seek to pursue his appeal by filing a notice of appeal with the Court of Appeal.

5.I have, however, recognised that there may be a difficulty in that the time within which Mr Wilmes could have filed his appeal as of right has by now expired.  Therefore, if he wishes to pursue his appeal, he will likely have to include within the notice of appeal an application for an extension of time for so doing.  Such an application, as I have informed Mr Wilmes, would need to be supported by an affidavit explaining the background and circumstances by which Mr Wilmes could seek the extra time from the Court of Appeal.

6.No doubt one of the things which Mr Wilmes will say is that, as a litigant acting in person, he ought not to be overly penalised for not understanding the procedural rules and so for seeking leave to appeal when he did not need it, and in the interim between that summons and this hearing, not taking out a notice of appeal in time.

7.Mr Wilmes will no doubt also refer to the fact that it was only in the skeleton argument filed by Mr Yim for the purposes of this hearing, just a short time before this hearing, of course, that the point about not needing leave was brought to his attention.  It is perhaps unfortunate that Mr Wilmes was either not told or did not learn of the fact that he did not need leave to appeal but should instead have simply filed a notice of appeal at some earlier time.

8.However, also under the rules, I am not now able to grant the extension of time even if I were minded to do so, and that is a matter left to the hands of the Court of Appeal.  In considering whether or not to grant time, the court will take into account all the circumstances such as their view of the potential merits in the appeal.  So what I will do is make no order on Mr Wilmes’ summons of 24 March 2021.

9.In the course of this hearing, Mr Wilmes has nevertheless sought to impress upon me a number of different points, many of which are, understandably in his position wanting to appeal, criticisms of either my judgment or of me in my approach to the judgment.  It does not seem to me that there is any benefit to any party in my dealing with those criticisms.  Indeed, in the procedural position in which the parties and myself find ourselves, I am not even sure that I would have power to make any particular comments on the merits of the proposed appeal.  Those are best considered in whatever is the appropriate context by the Court of Appeal itself.

10.One of the criticisms made by Mr Wilmes is that I have demonstrated apparent bias in my approach to the judgment.  He has this morning, therefore, asked me to recuse myself from this case.  As I explained to him orally during argument, I do not think that such an application needs to be made because the practical effect of my having given a judgment is that I am no longer dealing with this case.  In any event, if the matter is pursued to the Court of Appeal and there is success on the appeal, it will of course be open to Mr Wilmes to ask the Court of Appeal that a resurrected claim should not come back to be dealt with by me in any way and I leave entirely to the Court of Appeal what might be done if that application or request were to be made.

11.Also, this morning, Mr Wilmes has made an oral application to amend the Amended Statement of Claim to add words along the lines that there is a claim to damage of a monetary type in a sum claimed for an award of a nominal amount of $1.  I do not think I can deal with that amendment application in the present circumstances because as a result of my previous judgment, there is no extant action and no claim open to be amended. It might have been possible to seek an amendment prior to my judgment, and that was a point which I specifically referenced as a possibility in, for example, paragraph 69 of my judgment.

12.Whether Mr Wilmes would wish in his intended appeal in the Court of Appeal to say that should they consider there to be a defect, it is one capable of being cured by amendment, I leave to Mr Wilmes. But I do not think that that application can properly be dealt with by me.  And in the circumstances, in any event, I would disallow it.

13.So the ultimate decision seems to me to be, as I previously indicated, it remains open to Mr Wilmes to file a notice of appeal with the Court of Appeal on the basis that there was an appeal which lay as of right from my judgment, and that albeit the time within which formally such a notice of appeal should have been served, an application could also be made for an extension of time for so doing.

14.Having made no order on the summons, which is what brings us here this morning, I will now hear the parties on costs.

(Submissions re costs)

15.In the circumstances of how this hearing has come about and the result of it, it seems to me that the appropriate order is to make no order as to costs.  As I have indicated, the mistake about seeking leave to appeal is perhaps understandable when a litigant acts in person and tries to navigate their way through the rules of the High Court and the notes as found in the White Book.  The matter has been dealt with today at least reasonably expeditiously.  And in the overall exercise of my discretion, I consider the fair order to be no order as to costs.

The plaintiff, acting in person

Mr David Yim, SGC(Ag), instructed by the Department of Justice, for the defendant