Drs Anderson and Another v. David R. Seabrook

DCCJ005526/1978

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CIVIL JURISDICTION

ACTION NO. 5526 OF 1978

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Coram: Judge Jones, D.J.

Date of Judgment: 25 September 1978

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DECISION

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1. On the 1st September 1978 pursuant to Rule 31(2) of the District Court Civil Procedure (General) Rules the Deputy Registrar struck out Action No. 7646 of 1977 from the register of Civil Actions.

2. Rule 31(2) provides that

'Where no application to fix a date for the hearing of an action is made under rule 24 within three months from the date on which the defence or counterclaim was filed the Registrar shall strike out the action from the Register of Civil Actions.'

3. Rule 24(1) provides

'Where:-

	(a)	a defence or counterclaim has been filed within the period provided for by rule 21 or before judgment has been entered;
	(b)	................
		any party to the action may, on giving notice to all other parties apply to the Registrar in Form 15B in the second schedule to the District Court Civil Procedure (Forms) Rules to fix a day for the hearing of the action.'

4. The writ in action 7646 of 1977 was issued on the 4th November 1977. A defence and counterclaim was filed on the 23rd February 1978. The pleadings were closed on 31st March 1978 when a reply and defence to counterclaim was filed. No further steps were taken by the parties before the action was struck out. The defendant in the present action applies by summons for an order that the plaintiffs pay the defendants costs on the upper scale of action 7646 of 1977, and for a stay of further proceedings until such costs are paid. Since action 7646 of 1977 was struck out the plaintiffs have issued an identical action against the defendant.

5. Mr. Miller on behalf of the defendant submits that the first action was struck out by virtue of the Plaintiffs failure to apply for a hearing date. However, although the Plaintiffs had the carriage of the action, the defendant whose counterclaim exceeded that of the claim, was equally entitled to apply for a hearing date. Accordingly it is clear that both parties can be held to blame for the action being struck out. There is no provision in the District Court Civil Procedure (General) Rules for the payment of costs in such an eventuality.

6. Mr. Miller referred to Order 21 rule 5(1) of the Rules of the Supreme Court which provides that

'Where a party has discontinued an action or counterclaim or withdrawn any particular claim made by him therein and he is liable to pay any other party's costs of the action or counterclaim or the costs occasioned to any other party by the claim withdrawn, then, if, before payment of those costs, he subsequently brings an action for the same, or substantially the same, cause of action, the Court may order the proceedings in that action to be stayed until those costs are paid.'

7. I do not consider that this provision applies for it refers to action taken by the parties whereas the action was struck out by the Deputy Registrar under a rule that is mandatory. There is no corresponding rule to Rule 31 in the Rules of the Supreme Court.

8. The effect of Rule 31(2) was considered by Judge Addison as he then was in Tse Tsun-man v The Kowloon Motor Bus Co. (1933) Ltd. and another (1971) D.C.L.R. 39. At page 45 he said:

9. I am of the opinion that the decision in that case was correct. The action has therefore ceased for all purposes.

10. Accordingly the Court has no jurisdiction to entertain this application which is dismissed with costs to the Plaintiffs on the upper scale.

Certified true copy:

Representation: