Tse Tsun Man v. The Kowloon Motor Bus Co (1933) Ltd and Another

DCCJ002105A/1971

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CIVIL JURISDICTION

ACTION NO. 2105 of 1971

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Coram: Judge Addison.

Date of Judgment: 22nd November, 1971

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RULING

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1. On the 7th April 1971 the plaintiff suing on the capacity as administrator of the estate of one TSE Tim, instituted proceedings against the defendants for damages under the Fatal Accidents Ordinance, Cap.22 and the Law Reform (Miscellaneous Provisions) Ordinance, Cap.241 for their alleged liability for the death of the above-named deceased.

2. A defence denying liability was filed out of time, with the consent of the plaintiffs, on the 10th May, 1971. Thereafter the plaintiffs made no application to fix a date for the hearing of the action with the result that the Deputy Registrar of the Kowloon District Court made an order, on the 9th August, 1971 ordering that the action be struck out from the Register of Civil Actions under rule 31 of District Court Civil Procedure (General) Rules.

3. His order did not specify that it was made under sub-rule (2) of rule 31 but there is no doubt this was the case because sub-rule (1) of rule 31 only applies where no defence or counterclaim is filed.

4. Rule 31(2) provides:

"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."

5. That the Deputy Registrar is competent to exercise the functions of the Registrar is ascertainable from the definition of "Registrar" in the District Court (Civil Jurisdiction and Procedure) Ordinance, Cap.336 as read with section 11 of the District Court Ordinance, Cap.5. Pursuant to the order made by the Deputy Registrar the plaintiff's solicitors took out an inter parts summons dated the 29th October 1971 for the action to "be restored to the Register of Civil Actions", and for an order that the plaintiff have leave to file his application to fix a date for hearing out of time.

6. This summons was returnable on the 12th November, 1971 on which date I adjourned the application until the 15th November, 1971 in order to hear argument as to whether I had jurisdiction to entertain it. The defendants do not oppose an order being made but the parties cannot by consent confer a jurisdiction on the court which it does not have.

7. On the 15th November, 1971 Mr. TSANG who appeared for the plaintiff referred me to the Supreme Court Practice 1970, O.3 r. 5 note 3/5/5 on page 16.

8. That reads as follows:

"Where an order is made dismissing an action for want of prosecution unless some act is done within a specified time, and the act is not in fact done within that time, the action ceases to exist and thereafter no order can be made extending the time for doing the act. (Whistler v. Hancock 3 Q.B.D. 83; King v. Davenport 4 Q.B.D. 402; Script Phonograph Co. v. Gregg 59 L.J. Ch. 406, C.A. Contrast the decision of kekewich, J. in Collinson v. Jeffery [1896] 1 Ch. 644, a redemption action). Accordingly if an application for extension of time is not made and heard before the time limited by the order has expired, the only remedy is to appeal from the order dismissing the action, and, (if necessary) to apply at the same time for an extension of time for appealing (Carter v. Stubbs, 6 Q.B.D. 116 C.A.)"

9. It was to the latter case that he referred me and he asked me to treat the application dated the 29th October, 1971 as one as an appeal from the order made by the Deputy Registrar on the 9th August, 1971.

10. Reference was made in the case of Carter v. Stubbs to the earlier cases of Whistler v. Hancock 3 Q.B.D. 83, Wallis v. Hepburn 3 Q.B.D. 84, King v. Davenport 4 Q.B.D. 402 and Burke v. Rooney 4 C.P.D. 226.

11. Lord Selbourne, L.C. in Carter v. Stubbs distinguished the cases of Whistler v. Hancock and Wallis v. Hepburn. He said at p.118 of the report:

"In those cases the order dismissing the action was in force and not appealed against, and also there was no application to enlarge the time for appealing, but some other orders were asked to be made for extending the time for doing something in the action and it was there held rebus existentibus that there was no power to make such orders, as the action was no longer in existence. Those cases have no application here, where the form of the order is for enlargement of the time for appealing against the order dismissing the action, and an order of this kind is within the meaning of Order LVII rule 6 which expressly says that such enlargement may be ordered after the expiration of the time allowed for doing the act."

12. In the Carter case the facts were a little unusual. An order was made by Master Francis ordering that if answer to interrogatories were not filed by the plaintiff within 7 days his action would be dismissed. The plaintiff failed to do so and his action was dismissed for want of prosecution. Subsequently Master Gordon rescinded the order and granted the plaintiff 7 days extra time to deliver notice of trial. The defendant then applied to Hawkins, J. to have the order of Master Gordon discharged. Hawkins, J. adjourned the hearing but made two orders, one of granting an extension of time to appeal against the order made by Master Francis and the other of varying the order of Master Francis thereby substituting 14 days for 7 days as the time limited for the plaintiff filing his affidavit in answer to the interrogatories. The defendant then appealed to the Common Pleas Division which set aside the orders of Master Gordon but affirmed the two orders made by Hawkins, J.

13. The defendant then appealed against the order of the Common Pleas Division which though setting aside the order of Master Gordon affirmed the two orders of Hawkins, J. It was this appeal which was before the Court.

14. Brett L.J. said:-

"The question is whether Mr. Justice Hawkins had jurisdiction to make both orders he made on the 20th of July last. I think he had, under Order LVII rule 6. That rule is on the longest terms, and although the time for appealing against the order of Master Francis had expired there was power under that rule to enlarge such time, as was done by the first of these orders. The next order was to enlarge the time for answering the interrogatories, and there was, I think, jurisdiction to make that after the time for appealing had been extended. The cases of Whistler v. Hancock and Wallis v. Hepburn were cited to show that there was no jurisdiction to make these orders; but in those cases it was held that the Court had no jurisdiction to do what they were asked to do, because there had been no order in either of those cases to enlarge the time for appealing against the order dismissing the action, and that order existing and having taken effect the cause was dead. In Burke v. Rooney 4 C.P.D. 226, however a different cause was pursued, and there application was made but the plaintiff, similar to that which has been made here, to extend the time for appealing against the order, so that he might thereafter get it varied or set aside, and it was held that there was jurisdiction to extend the time. I am clearly of the opinion that the decision in that case was right, although Whistler v. Hancock and Wallis v. Hepburn were also right."

15. The headnote in Whistler v. Hancock 3 Q.B.D. 83 reads as follows:-

"An order was made under Order XXIX rule 7, dismissing an action for want of prosecution, unless a Statement of Claim should be delivered within one week. The week having expired, and no Statement of Claim having been delivered; - Held: That the action was at an end and there was no jurisdiction to make an order subsequently extending the time for delivery of the Statement of Claim."

16. In my opinion King v. Davenport 4 Q.B.D. 403 is an authority for the proposition that consent of the parties cannot resurrect a defunct action.

17. There has been no application in this case to extend the time for appealing but even if there were I am of the opinion that it would not avail the plaintiff.

18. Order 3 r.5 is as follows:-

19. Then follows sub-rules (3) and (4) which I consider not relevant to this application.

20. Rule 31(2) of the District Court Civil Procedure (General) Rules does not require either party to fix a date for the hearing of an action. It directs the Registrar to strike out the action from the Register of Civil Actions where no application is made to him for fixing a hearing date. The rule is couched in mandatory terms and my attention has not been directed to any right of appeal therefrom to a Judge of the District Court.

21. Though it may be argued that the Deputy Registrar is a "person" within O.3 r.5 and that O.3 r.5 confers power on the Court to permit an application for extension of time, before which he may strike out the action I do not think that such argument will avail the applicant herein.

22. This is not a case where an order is made by a Judge directing that unless an order is complied with the action will be dismissed. The rule here is one which aims to ensure actions are heard without there being a clog in the administration of justice and in my opinion it operates automatically.

23. In Odgers on Pleading and Practice 19th Edition page 70 appears the following extract:

"Further the time fixed for doing any act may be enlarged or abridged by the master who may enlarge it even though it has already expired (Order 3 r.5(1)(2)), but it is unwise to defer the application till so late a date. If an order has been made dismissing the action unless the plaintiff does some act - e.g. serves a statement of claim - within a limited time and the plaintiff defaults, the action is at an end and the time for doing the act cannot thereafter be extended, all that can be done is to ask for an extension of time for appealing against the order dismissing the action."

24. I can find no provision enabling the court to set aside an order for striking out under Rule 31(2). Provision is however made under Rule 22(1) of the District Court Civil Procedure (General) Rules for setting aside a judgment in default of defence but such is inapplicable here. The absence of a parallel saving rule for Rule 31 indicates to me that there is no equivalent residual power conferred on the Court.

25. Finally I will refer to Mulla in his Code of Civil Procedure 13th Edition Vol.1 at page 568 which seems opposite.

26. In commenting upon O.67 r.7 which provides:

27. An action may still continue in existence notwithstanding non-compliance with an order (see Manley B. States Ltd. v. Benedek [1941] 1 All E.R. 248) but the question here is ultimately this: "Does an order made by the District Court Deputy Registrar under Rule 31(2) of the District Court Civil Procedure (General) Rules terminate the action, so that the District Court is thereafter functus officio?" In my opinion that is the position.

28. Accordingly the application is dismissed with costs. Scale V.

29. Delivered this 22nd day of November 1971.

CERTIFIED TRUE COPY.

22.11.71. (P.S.II) (A.Costa).

Representation:

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