Alessandro Guarino v. Quasar Engineering Ltd

DCEO 6/2023

[2025] HKDC 121

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO 6 OF 2023

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REASONS FOR DECISION

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I.  INTRODUCTION

1.On 6 January 2025, the claimant issued a summons for leave to file and serve a draft re-re-amended notice of claim returnable before me on 17 January 2025. The respondent agreed to the summons, and I made a consent order accordingly at the hearing.

II.  DISPUTE OVER COSTS

2.However, the respondent sought costs, while the claimant sought that each parties shall bear their own costs based on section 73C of the District Court Ordinance (Cap 336), which provides that:-

“(1) The Rules Committee may make rules regulating the practice of the Court in the exercise of its jurisdiction under the Disability Discrimination Ordinance (Cap. 487) and the forms of proceedings therein.

(2) The power to make rules under subsection (1) shall extend to all matters of procedure or practice or matters relating to or concerning the effect or operation in law of any procedure or practice in any case within the cognizance of the Court as to which rules of the High Court have been or might be made for cases within the cognizance of the High Court…

(3) Each party to any proceedings in the Court in the exercise of its jurisdiction under the Disability Discrimination Ordinance (Cap. 487) shall bear its own costs unless the Court otherwise orders on the ground that—

(a) the proceedings were brought maliciously or frivolously; or

(b) there are special circumstances which warrant an award of costs”.

III.  INTERLOCUTORY APPLICATIONS

3.On this statutory provision, the respondent’s main submission was that for interlocutory applications in a claim commenced under the Disability Discrimination Ordinance (the “DDO”), it is not always that the Court would order the parties to bear their own costs under section 73C. I agree with this as a general proposition given that section 73C provides exceptions.

4.To elaborate this submission, the respondent referred me to X v Melvyn Kai Fan Lai and Anor, DCEO 4/2016, 18 January 2017.

5.X v Melvyn Kai Fan Lai and Anor is a case where the paying party was the one whose summons to seek further and better particulars was dismissed. First, it does not appear from the case that section 73C was considered. Second, as the paying party’s summons was dismissed, it may well have been in the judge’s mind in that case that the application was “frivolous since, when objectively considered, it is without foundation and bound to fail”: see Lee Chick Choi v The Hong Kong Golf Club [2023] HKDC 1318.

6.It is different here: the claimant’s summons for the substantive relief, namely, to amend his pleadings, was consented to. There cannot be any suggestion that the amendments were frivolous.

7.So, I do not think X v Melvyn Kai Fan Lai and Anor helps the respondent.

8.The respondent submitted that during the hearing of the respondent’s striking out application before Her Honour Judge G Chow on 20 December 2024, the claimant’s counsel said that the draft re-re-amended notice of claim was to salvage the pleading, and thus the current application to amend the re-amended notice of claim was incidental to the pleading to be salvaged, and thus costs should be ordered against the claimant. However, even assuming that the claimant’s counsel did say that during the hearing, Her Honour Judge G Chow only said in §28 of her decision [2024] HKDC 2159 that the pleading is “not unarguably bad”, though “far from perfect and could certainly be improved”. In my view, none of these can constitute any basis for the respondent to say that the claimant’s current application is frivolous or malicious, or that there are any other grounds for ordering costs against the claimant.

IV.  GENERAL APPLICABILITY OF SECTION 73C

9.The respondent also seemed to submit at a point during the hearing that section 73C was not applicable to interlocutory applications, but later seemed to retract from this submission.

10.To avoid any unnecessary argument on this point in the future, in my view:-

(1)  It is clear that the Court’s jurisdiction to determine all the interlocutory applications in a claim commenced under the DDO is jurisdiction under the DDO but not the District Court Ordinance or the court’s inherent jurisdiction, because although the District Court may adopt rules similar to other civil claims in making the rules and/or in exercising the jurisdiction under the DDO to determine how the proceedings should proceed, they are still rules made for the purpose of the DDO and jurisdiction under the DDO;

(2)  For logical consistency, I cannot see why the legislature would intend one set of costs rule to apply to non-interlocutory proceedings under the DDO, but leave interlocutory proceedings in relation to the non-interlocutory proceedings under the DDO to be undealt with; and

(3)  Therefore, section 73C applies to interlocutory applications in actions commenced under the DDO.

V.  ORDER

11.In the circumstances, I made no order as to costs in relation to the claimant’s summons, the effect being that each parties to bear their own costs.

Miss C Fan, of Messrs Lewis Silkin, for the claimant

Mr Jeffrey Chan, of Messrs Hugill & Ip, for the respondent