Wo Fung Paper Making Factory Ltd v. Sappi Kraft (Pty.) Ltd
Read the full judgment text of on BabelCite. was delivered on 19 November 1987.
1. The writ in this action was take out on the 10th March. Leave under O.11 for issuance and service of a concurrent writ out of jurisdiction was granted by the learned Master on the 13th in the same month. The defendant was duly served. An Acknowledgment of Service was lodged on the 15th July. Under O.12, r.8 of the Rules of Supreme Court, the defendant was entitled to file, within 14 days thereafter until the 29th July, a summons to challenge the Court's jurisdiction.
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HCA001407B/1987
IN THE SUPREME COURT OF HONG KONG HIGH COURT ------------------ BETWEEN
------------------ Coram: Hon. Liu J. in Chambers Dates of hearing: 17 - 20 and 23 November 1987 Date of delivery of ruling: 19 November 1987 ----------- RULING ----------- 1. The writ in this action was take out on the 10th March. Leave under O.11 for issuance and service of a concurrent writ out of jurisdiction was granted by the learned Master on the 13th in the same month. The defendant was duly served. An Acknowledgment of Service was lodged on the 15th July. Under O.12, r.8 of the Rules of Supreme Court, the defendant was entitled to file, within 14 days thereafter until the 29th July, a summons to challenge the Court's jurisdiction. 2. To be more precise, two attempts were made on the 29th July to issue the defendant's present summons. The Supreme Court Registry refused the first attempt on the ground of what was thought to be an unsatisfactory estimated time for hearing. The refusal was quite unexpected, and by the time solicitor in charge managed to give further instructions, it was too late for the filing clerk to implement the second attempt. In these circumstances, no application to extend time was or could have been envisaged. The summons was presented for filing in the same form and for the same estimation of time, the next day, the 30th July and was accepted for issuance. 3. Counsel for the defendant concedes that the summons filed on the 30th July was thus out of time as envisaged by O.12, r. 8(2) which reads as follows: -
4. When the summons was returned before the learned Master, he refused to extend time but came to the conclusion that there was material non-disclosure. However he was prepared only to disturb the O.11 order in part. Before me, the consensus is that these two limbs of the Master's decision were found on the question of the Court's jurisdiction, or more precisely, the lack of it in the first limb and the assumption of it in the latter. 5. It was felt desirable for better guidance of future conduct in these proceedings to determine, as a threshold question, whether the Court has jurisdiction to entertain first, an application to extend time for filing an O.12, r.8 summons and secondly, an application to set aside an ex parte order for alleged material non-disclosure, both after the expiration of the 14 days prescribed by O.12, r. 8(2). 6. I ruled that the Court has inherent jurisdiction to extend time for filing, an O.12, r.8 summons despite the absence of any application for an extension made within the said period of 14 days. I further held that the Court has like inherent jurisdiction as well as powers under O.32, r.6 of the Rules of Supreme Court to entertain an application for the discharge of an ex parte order obtained on material non-disclosure. I proposed to give full reasons in due course, which I now do. 7. In Montreal Trust Co. v. Churchchill Forest Industries (Manitoba) Ltd.(1), Freedman C.J.M. delivering, the judgment of the Manitoba Court of Appeal cited with approval Mr. I.H.Jacob's definition of inherent jurisdiction at page 81 : -
8. Inherent jurisdiction has often been invoked to intervene in proceedings which are frivolous and vexatious, amounting to an abuse of the process of the Court. Counsel for the defendant provides examples in Willis v. EarlBeauchamp(2) ,Davey v. Bentinck(3) and Beale v. MacGregor(4). But as acknowledged by the Manitoba Court of Appeal in the Montreal Trust Company case, the inherent jurisdiction of the English Court is not confined to the mere prevention of abuse of its process by staying or dismissing vexatious actions. Indeed, Mr. Jacob commented on its immense percolation as one "so pervasive in its operation that it seems to defy the challenge to determine its quality and to establish its limits". 9. The inherent jurisdiction of the Court is only to be curtailed by statutory enactment. Paragraph 14 at pages 22 & 23, Volume 37, Halsbury's Laws of England, 4th ed. sums up succinctly that the Supreme Court "exercises the full plentitude of judicial power in all matters concerning the general administration of justice within its territorial limit, and enjoys unrestricted and unlimited powers in all matters of substantive law, both civil and criminal", in the form of an inherent jurisdiction which enables it to fulfill itself, properly and effectively, as a court of law." It "is a virile and viable doctrine."(5) 10. There is no legislation known to me, in clear terms or otherwise, which seeks to divest or deflect the Court's inherent jurisdiction from matters canvassed in the instant appeal. The Rules of Supreme Court derive their source from Section 54 of the Supreme Court Ordinance. These Rules are designed to govern procedure and administration. It was not, in my view, intended or envisaged that the Court's inherent jurisdiction would be so abridged or abrogated. Indeed, the Rules could not legitimately achieve that effect. This concept coincides with Mr. Jacob's observation that the inherent jurisdiction of the court is "claimed by the superior courts of law as an indispensible adjunct to all their other powers, and free from the restraints of their jurisdiction in contempt and the Rules of Court."(6). 11. Counsel for the plaintiff, Mr. Chan submitted that insofar as the Court had any inherent jurisdiction to entertain an application to set aside ex parte O.11 leave, it must be invoked also within the 14 days prescribed by O.12, r. 8(2). If the Rules cannot impair the Court's inherent jurisdiction, it would be hard to accept that they could fetter its exercise. Moreover, even some other applications provided by the same Rules for challenging the jurisdiction of the Court are decidedly outside this 14 days limitation, for instance, applications under O.18, r.19 or applications for a stay by reason of exclusive jurisdiction clauses. 12. In my view, the inherent jurisdiction of this Court has not been, in any way, impinged over matters relevant to these proceedings. 13. A Practice Note with regard to O.32, r.6 R.S.C. pronounced by Lord Denning, M.R. for the English Court of Appeal, in Becker v. Noel and Another (7), reads as follows : -
14. Mr. Chan for the plaintiff was prepared to yield to the force of this Practice Note, but Counsel argued that insofar as O.11 leave obtained ex parte was sought to be disturbed either under inherent jurisdiction or O.32, r.6 for material non-disclosure, the application must also be made within the 14 days laid down by O.12, r. 8(2). I have concluded, that O.12, r.8(2) does not divest the Court of its inherent jurisdiction; nor does it fetter its exercise. No more need be said. 15. Counsel further contended that O.12, r.8, by its reference to r.7, provided two main grounds for challenging the Court's jurisdiction granting O.11 leave, that is to say, on the ground of irregularity "or on any other ground". Thus, so Counsel argued, an application to discharge O.11 leave obtained ex parte on material non-disclosure, even under O.32, r.6 or inherent jurisdiction must necessarily fall within the words "any other ground". Hence, so Counsel concluded, the application seeking to discharge the order in question, obtained ex parte on the ground of material non-disclosure, even under O.32, r.6 or the inherent jurisdiction of the Court must be brought within the same period of 14 days. In my view, whilst O.12, r.8 enables a challenge to be made to the Court's jurisdiction, O.32, r.6 or inherent jurisdiction referred to in the said Practice Note merely provides a means to question the propriety of a plaintiff's conduct in obtaining ex parts O.11 leave and to deprive him of the advantage unfairly gained. The Court's jurisdiction is not contested. Counsel's contention therefore also fails. 16. I hold therefore that the Court has inherent jurisdiction to intervene in the instant case both for extending time and by reason of material non-disclosure. In addition, the Court has powers under the Rules of Supreme Court to police ex parts application under O.32, r.6. In conclusion, the Court has jurisdiction and powers to entertain the defendant's application in toto. 17. I have some reservations as to how such inherent jurisdiction should be exercised and what guidance may be gained from (1) the lack of reference to inherent jurisdiction and the use of "the guillotine" for O.12, r.8(2) in the recommendation of Robert Goff, J., as he then was, in Carmel Exporters (Sales) Ltd. v. Sea-Land Services Incorporation(8) and (2) the practical limitation to actual judicial intervention, discerned in an examination of pre-1965 Transvaal decisions by Coetzee, J. in Western Bank Ltd. v. Packery(9). I shall have to reserve my opinion until I have had the benefit of further submissions from Counsel.
(1) (1972) 2 D.L.R. (3rd) 75. See Also "The Inherent Jurisdiction of the Supreme Court" Jerold Taitz, p. 9, footnote 47. (2) (1886) 11 P. D. 59 at p.63 per Bowen, L.J. (3) [1893] 1 Q.B. 185 at p.188 per Lord Esher, M.R. and p.189 per Lopes, L.J. (4) [1886] 2 T.L.R. 311 (5) See also Mr. Jacob's "The Inherent Jurisdiction of the Court" (1970) 23 Current Legal Problems 51 at p.52. (6) Ibid. p. 52 (7) [1971] 1 W.L.R. (8) [1981] 1 A.E.R. 947 at p. 993c (9) [1977(3)] T.P.D. 137 at p. 141 G and H Representation: Mr. E. Chan instructed by Messrs. John Ku, Tam & Ho for the Plaintiff. Mr. G. Ha instructed by Messrs. Baker & McKenzie for the Defendant. |