Tai Shun Jewellery Trading Co (A Firm) v. Elias Christianos

Case No.HCA 1255/1968

Court

High Court CFI

Date27 Mar 1969

Judge—

Case Document

100%Judiciary

HCA001255/1968

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 1255 OF 1968

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BETWEEN
	Tai Shun Jewellery Trading Co. (a firm)	Plaintiff
	AND
	Elias Christianos	Defendant

Coram: Huggins, J.

Date of Judgment: 27 March 1969

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RULING

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Huggins,J: The Writ in this action was issued on the 26th September 1968. On the 27th December 1968 an Order was made setting the case down for trial. The action was estimated to take two days. It would therefore in the ordinary course of events have appeared in the Short Cause List and have been tried in its due order.

2. On the 15th January 1969, upon an application of the defendant, an Order was made that the case be heard on a fixed date, namely, today. I am informed from the Bar, and I accept, that the reason for this application was that the defendant wished to call as a witness his brother, who is normally resident in the United States of America. The brother infrequently visits Hong Kong and it was desired to ensure that he should be available.

3. On the 21st March an application was made to me in Chambers for a postponement of the trial. The reason for this application was that the defendant himself was not going to be available upon the date previously fixed. The defendant is a partner in a firm which, inter alia, mines opals in Australia and the affidavit in support of the application indicated that on the 5th March this year the defendant left Hong Kong for Australia on a routine visit, intending to return on the 19th March in good time for the hearing of the action. It appears that while the defendant was in Australia the possibility arose of his firm's taking leases of two further mines and for the purpose of considering the proposals made to him the defendant arranged for surveys to be carried out. I am told that the surveys took longer than was expected and I was further informed that it was necessary for the defendant to remain during the surveys, otherwise the surveys would have had to be begun again. Upon that application on the 21st March the solicitor for the plaintiff consented to the application which was made but it seemed to me that, having obtained a fixed date, the defendant should not be allowed to have a postponement when it was possible for him to return in order to attend the trial. I therefore refused a postponement.

4. In accordance with his undoubted right the defendant appealed against my refusal to the Full Court. His Motion on Appeal came before the Full Court on the 25th March and I am informed that the appeal was dismissed.

5. Now I say at once that if the present application were no more than an application for such adjournment as would have enabled the defendant to return to Hong Kong had he started back within a reasonable time of the Full Court's decision, I would unhesitatingly have granted an adjournment. To have refused an adjournment in those circumstances would in effect have been to deprive the defendant of any effective right of appeal. The application was not, however, couched in this form. The position is that he was informed of the Full Court's decision very shortly after it was made but decided not to come. It would, I am told, and I accept this from the Bar, have been possible for the defendant to reach Hong Kong by midnight tonight but not before. If therefore I had been informed that the defendant was on his way to Hong Kong I should unhesitatingly have granted an adjournment, it may be not merely until tomorrow but until a reasonable time had elapsed for him to attend: it is possible that an aeroplane scheduled to arrive at midnight might have been delayed and in any event it may be that a journey such as that which is in contemplation would leave the defendant in no fit state to embark upon the strain of court proceedings.

6. The reason why I thought last week that this case ought not to be postponed was that where a party has asked for a fixed date in lieu of the normal place in the Running List it is his duty, not only to the other parties to these proceedings but also to the court and to all other litigants, to appear upon the date fixed - and this is a view which I assume was accepted by the Full Court. Although other litigants whose cases are due for hearing in the very near future would not be affected by the postponement, since it matters not to them whether I am able to hear this case or whether I am to be engaged in the ensuing two days on other business, litigants who are further down in the List might well be affected: this case will have to be heard in due course and any litigant whose case comes on after the date upon which it is eventually tried, will, if I grant an adjournment, be postponed beyond the date which otherwise would have been available.

7. The main point which has exercised my mind in considering this renewed application is the interest of the plaintiff. Today Mr. Arculli, on behalf of the plaintiff, has expressed a preference - as indeed one would expect him to do - for proceeding with the trial but he has indicated that he does not press the matter. It is apparent that if I refuse this present application his client may be involved in the further trouble, and possibly expense, of more litigation, for it is possible that this new decision would be tested on appeal. However, Mr. Aroulli has, at least implicitly, indicated that that is not a risk which his client would consider of great weight and hence his preference for proceeding today.

8. I find this not an easy matter to decide because it seems to me that if a litigant is refused a postponement at a time when it is possible physically for him to attend and if he then successfully renews his application at the trial when it is no longer physically possible for him to attend it makes a farce of the discretion which ostensibly is in the judge who hears the first application: if it is, on the second application, a material fact that the applicant by his own default has failed to attend although aware that his previous application has been refused, then there is no point in ever refusing a postponement to a party who is abroad. Therefore I confess that I have viewed this present application with some disfavour. However, the defendant's difficulties have been most forcefully urged before me and in particular the following circumstances:

1.	that the case was fixed for only two days;
2.	that appeal against the initial refusal of an adjournment was lodged promptly and that the Full Court's decision was communicated to the defendant promptly;
3.	that owing to the pressure of business in the Full Court the defendant was in all the circumstances unable to exercise effectively his right to go to that court, i.e. he could not be heard before a date such that the court's decision could be communicated to him in time to allow him to attend at the earliest on the second of the two days fixed for the trial of the action;
4.	that there was always the further possibility that the hazards of travel might have prevented his arriving even on the second day;
5.	that even if he had been physically present on the second day the strain of long distance travel might have prevented him from doing himself justice at the trial.

Accordingly I have with the very greatest hesitation come to the conclusion that Mr. Mills-Owens's application should not, as at first I thought, be refused and with considerable reluctance I am prepared to grant an adjournment, but it will be on terms. The terms will be that this case go back into the Running List and be taken in its due order but not in this Term.

9. The costs thrown away today must be paid by the defendant in any event.

27th March, 1969.

Representation:

Mr Arculli (Stewart & Co.) for the Plaintiff

Mr. Mills-Owens (Deacons) for the Defendant

Ruling pronounced by Huggins J. in court.