Wong Shu-tao v. Madam Choi Shuen-lan

Case No.CACV 71/1979

Court

Court of Appeal

Date01 Feb 1980

Judge—

Case Document

100%Judiciary

CACV000071/1979

Appeal - setting down - o.59 r.5 - appellant must produce within 7 days a copy of "the judgment or order" - "the judge's reasons for giving the judgment or order" (o.59 r.9) distinguished - long delay - appeal without merits - extension of time refused and Notice of Appeal discharged.

IN THE COURT OF APPEAL	1979 No. 71
	(Civil)

BETWEEN
	WONG Shu-tao carrying on business under the style of HWA KIU COLLEGE	Appellant (Plaintiff)
	AND
	Madam CHOI Shuen-lan	Respondent (Defendant)

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Coram: Huggins, J.A. and O'Connor, J.

Date of Judgment: 1 February 1980

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JUDGMENT

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Huggins, J.A.:

1. There are before us an application by the Respondent for the discharge of the Notice of Appeal on the ground that the appeal was not set down in the Appeal List within the time prescribed by the Rules and an application by the Appellant for an enlargement of the time so prescribed.

2. The whole case turns upon Order 59 rule 5 and I think it is desirable that something should be said about Order 59 because this is the second case we have had this week in which there appears to have been a misunderstanding as to what is required. Order 59 rule 5 provides that

"(1) The appellant must, within 7 days after service of the notice of appeal or within such further time as may be allowed by the Registrar, produce to the Registrar the judgment or order of the court below, or an office copy thereof, and leave with him -

	(a)	a copy of the said judgment or order, and
	(b)	two copies of the notice of appeal, one of which shall be impressed with the appropriate judicature fee stamp, or indorsed with the amount of the fee paid, and the other indorsed with a certificate of the date of service of the notice, and
	(c)	an office copy of any list of exhibits made under Order 35, rule 11.

	(2) Upon the said documents being left, the Registrar shall file one copy of the notice of appeal and cause the appeal to be set down in the list of appeals; and the appeal shall come on to be heard according to its order in that list unless the Court of Appeal or a judge of that Court otherwise orders.
	(4) Within 2 days after an appeal has been set down, the appellant must give notice to that effect to all parties on whom the notice of appeal was served, specifying the list in which the appeal is set down."

There is in this case a form of "Notice of Setting Down" which, though so drafted, might possibly have been construed as a notice of setting down as required by para. (4) of the rule. In order to set a case down in the Appeal List an appellant has to provide documents: he does not by a notice set the case down, as appears to be thought by some. It is the Registrar who automatically sets it down when he receives the appropriate papers. Within two days thereafter notice has to be given - not that the appeal is thereby set down but that it has been set down. Then, when one turns to rule 9 of the same Order, one finds that

"Not less than 7 days before the appeal is likely to be listed for hearing the appellant must cause to be lodged with the Registrar the number of copies for which paragraph (2) provides of each of the following documents, namely -

	(a)	the notice of appeal;
	(b)	the respondent's notice;
	(c)	any supplementary notice served under rule 7;
	(d)	the judgment or order of the court below;
	(e)	the pleadings (including particulars), if any, and, in the case of an appeal in an Admiralty cause or matter, the preliminary acts, if any;
	(f)	the transcript of the official shorthand note, if any, of the judgment or order of the court below or, in the absence of such a note, the judge's note of his reasons for giving the judgment or making the order;
	(g)	such parts of the transcript of the official shorthand note, if any, of the evidence given in the court below as are relevant to any question at issue on the appeal or, in the absence of such a note, such parts of the judge's note of the evidence as are relevant to any such question;
	(h)	any list of exhibits made under Order 35, rule 11, or the schedule of evidence, as the case may be;
	(i)	such affidavits, exhibits, or parts of exhibits, as were in evidence in the court below and as are relevant to any question at issue on the appeal."

(emphasis supplied)

These are the papers which will be used by the judges at the hearing of the appeal. The document which is required under Order 59 rule 5 is the judgment or order. Under Order 59 rule 9 there must be a copy of the judgment or order but there will usually also be the reasons for the judgment and it is important to appreciate that there is a distinction between the two: compare para. (d) and para. (f). It has been argued in the present case that there could not be a setting down under Order 59 rule 5 because the Appellant did not have "the judgment". By that the Appellant means that he did not have the judge's note of his reasons for giving the judgment. That was not necessary until the case was likely to be listed for hearing within 7 days.

3. There was in the present case a long delay. The case was heard on 14th September last year. Notice of Appeal was served within the requisite time. Time for setting down expired on 5th October but it was not until 10th December that anything at all was done by the Appellant towards having the case set down for hearing. It was then apparently - as in the case before us yesterday - that there was a misunderstanding as to the proper procedure.

4. Of course, we do not have to decide today whether or not the case was one which was anything more than arguable, but, in my judgment, the Appellant in the appeal has not shown any merits at all. The decision of the Commissioner was that there was a licence and not a tenancy. We have been referred to his reasons and to some of the authorities on the matter and, as it seems to me, there is not an arguable case that the Commissioner was wrong. That being so the Appellant is not entitled to expect much sympathy from this court. The Appellant has been, in my view, very lax in failing to comply with the Rules and I would grant the application to discharge the Notice of Appeal and dismiss the application for an extension of time.

O'Connor, J.:

5. I agree.

1st February 1980.

Representation:

Miss M. Yuen (John Ip & Co.) for Appellant/Plaintiff.

K.H. Woo (W.S. Lo & Co.) for Respondent/Defendant.