Yu Poon Yin v. Winner Moter Co (A Firm)

DCCJ005326/1980

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO.5326 OF 1980

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Coram: H.H. Judge Cruden

Date of Judgment: 7th October, 1980.

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JUDGMENT

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1. In this summons the plaintiff applies, inter alia, for the following orders:

2. On the 6th day of August 1980 before the issue of this summons, the plaintiff had filed the writ in this action together with particulars of claim. The defendant on the 14th day of August 1980 filed its defence and a counterclaim. On the 19th day of August 1980 the defence and counterclaim were served on the plaintiff.

3. On the 21st day of August 1980 the plaintiff attended at the Victoria District Court Registry and sought to file a Reply. The Reply joined issue with the defendant upon its defence and concluded by pleading that the purported counterclaim was not a counterclaim.

4. The Deputy-Registrar refused to accept the Reply on the grounds that pleadings close upon the filing of the defence unless leave is granted by the Court to file subsequent documents. No such leave had been sought or granted when the Deputy-Registrar declined to accept the plaintiff's reply.

5. On the 2nd day of October 1980 the present summons came before me. After hearing Counsel I granted the plaintiff leave to file the reply in terms of paragraph (b) of the summons and indicated that I would subsequently give my reasons for making that order. I now proceed to do so.

6. I understand that before the appointment of the present Deputy-Registrar replies were often filed without leave. I also understand that has been and continues to be the practice of the Kowloon District Court. It seems that the practice previously followed at Victoria District Court was that any pleading which could be filed in the Supreme Court without leave under the Rules of the Supreme Court could similarly be filed in the District Court without leave.

7. There appears to be no reported decision as to whether in the District Court leave must be obtained before any document subsequent to a defence is filed. The District Court is a creature of statute and I must therefore first turn to consider the District Court Ordinance Cap.336 and the District Court Civil Procedure (General) Rules made thereunder.

8. Rule 9 thereof provides:-

9. Rule 9 therefore provides that the Rules of the Supreme Court shall apply to the District Court with two exceptions:-

10. The application of the Rules of the Supreme Court to the District Court is therefore subject to these two important exceptions.

11. Counsel for the plaintiff submits that by virtue of our Rule 9, Order 18 of the Rules of the Supreme Court Court applies in the District Court except for Rule 2 thereof which is expressly excluded by the Schedule. Order 18 Rule 3 deals with replies in the Supreme Court where leave is not required to file a reply. Rule 4 of Order 18 goes on to provide that it is only pleadings subsequent to a reply which require the leave of the Court.

12. Clearly if Order 18 Rule 3 of the Rules of the Supreme Court applies in the District Court a reply may therefore be filed without leave and the refusal of the Deputy-Registrar to accept the reply was wrong. Certainly Order 18 Rule 3 - unlike Order 18 Rule 2 - is not expressly excluded from application under the Schedule. So whether Order 18 Rule 3 applies will depend on whether it is impliedly excluded pursuant to the qualification in Rule 9 (1) of the District Court Civil Procedure (General) Rules.

13. The general provision under the District Court Civil Procedure (General) Rules dealing with pleadings is Rule 34 which provides :-

14. The only pleadings the Rules make express provision for are the writ including the particulars of claim (Rule12) and - where the claim is not admitted - defence and counterclaim (Rule 21). These documents are the only pleadings which are expressly required. If other pleadings are desired then, at least prima facie, it would seem that they may only be filed with leave of the Court. However, Counsel for the plaintiff submitted that Order 18 Rule 3 of the Rules of the Supreme Court does apply to the District Court. If so a reply may be filed without leave. The plaintiff disputed that the combined effect of Rules 9 and 34 of the District Court Civil Procedure (General) Rules is to exclude Order 18 Rule 3. It was also submitted that Rules 35 and 38 indicated that replies may be filed in the District Court without leave.

15. Rule 35 (2) requires the Registrar to send a copy of a "Pleading" to, inter alia, "the party at the address given on the .... defence." It was submitted that this expressly shows that pleadings after the filing of the defence are contemplated. Similarly, the words "where the pleading filed is a defence" contemplates pleadings other than a defence.

16. Rule 38 provides for extension of time of "any pleading". It was submitted that if the Deputy-Registrar were right, then the legislature would have used the word "defence" and not "any pleading" for the defence would be the only pleading that would require any extension. I also observe that Rule 24 provides that after a defence has been filed or the period for filing has expired, any party may apply to the Registrar to set the action down for trial. In that event Rule 24 (2) provides that after the expiration of the time limited therein, the Registrar "shall" fix a day for hearing unless he refers the application to a judge who may make such order as he thinks fit. This is a further indication that pleadings close on the filing of a defence unless leave is granted to file further pleadings. Once a defence is filed the Registrar has no discretion but must set the action down for trial. If parties could file other documents without leave then the setting down procedure could become quite unworkable. Where leave is granted by the Court to file further pleadings the judge can, of course, make consequential orders as to setting down and in my experience usually does so. Where leave has been granted and the Registrar is faced with difficulties flowing from his mandatory obligation to set down, then he has the power to resolve the issue my referring the question of setting down to the discretion of a judge under Rule 24 (3).

17. Against this background and having considered Rules 35 and 38 in the light of Counsel's submissions, I do not consider they assist the plaintiff. For it is well settled that after the filing of a defence further pleadings may be filed with leave. Sensibly Rules 35 and 38 are sufficiently widely drawn to cover both pleadings without leave up to the filing of the defence and any other pleadings which may be filed thereafter with leave of the Court pursuant to Rule 34.

18. If the history of the District Court is considered the fact that the restrictions on pleadings in the District Court, without leave, are greater than in the Supreme Court is not surprising. Initially, compared with the Supreme Court, the District Court was to provide a speedier, cheaper and more informal civil jurisdiction somewhat analogous to the present aims of the Small Claims Tribunal. Until the 1970 amendments a defendant was not even entitled, as of right and without leave, to file a defence except in the uncommon case of a special defence under the then Section 33. The earlier procedure until 1970 was that after a plaintiff had commenced an action, the next step, after service of the writ, was for the parties to appear before the judge at the "weekly call-over."

19. At that stage the Court might under the then Rule 31, order that a defence or further pleadings be filed. In 1970 major changes were effected by abolishing the weekly call-over; providing for a defence to be filed without leave; and providing that after the defence is filed the Registrar was under a mandatory obligation to set the action down for trial unless he referred the matter to a judge.

20. Os originally a plaintiff filed his writ and no further pleadings were required unless ordered by the Court. The present perhaps cryptic contents of Rule 34 are in part a historical reflection of that earlier quite different procedure. The 1970 amendments, by providing for a defence to be filed without leave and consequential formal provisions for setting down, increased the formality of the District Court and brought it closer to the procedure in the Supreme Court. However, the amendments clearly stopped short of allowing replies to be filed without leave.

21. As the procedure became more formal it seems that parties - at least those professionally represented - tended to increasingly apply the procedure of the Supreme Court without always appreciating the precise provisions of the District Court. Today the procedure followed in many District Court actions is just as complicated as in Supreme Court actions. The District Court has therefore evolved far from the relatively informal civil tribunal originally envisaged. Perhaps it was because of the increasing complexity and sophistication of the District Court, which had become more of a lawyers court than a peoples court, that the Government in 1976 created the Small Claims Tribunal to provide the type of forum which the District Court in part, at least at the beginning, had provided.

22. While there appear to be no reported decisions of when it is necessary to obtain leave to file pleadings, there is a substantial body of decisions as to the effect between the parties of pleadings, once they are filed. In the absence of other authority it may be useful, in passing, to consider some of these cases. At an early stage there were differences of opinion as to whether when full pleadings were filed the parties should be obliged to adhere to them with the same strictness as in the Supreme Court. A number of District Court decisions suggested that where the parties had pleaded formally the same principles should apply as in the Supreme Court. In Ko Bros. Ltd. v. Chan Tin Wah (1958) D.C.L.R. 239, Huggins D.J., refers to the fact that "The degree of formality which should be observed in relation to pleadings in various courts has been a matter of wide discussion". The learned judge goes on to summarise the arguments for and against strict pleading in the District Court. However, in applying the rules of strict pleading in that case it is significant that formal pleadings had earlier been ordered. In Lee Yip Ling Che v. Foo Pui Hok & Anor (1965) D.C.L.R. 100 on the same question Yang D.J., observed:-

"It is therefore not necessary for me to decide whether the plaintiff may ignore his own incorrect pleading and depart from it, though my feeling is that where a party elects to resort to the formal particulars of claim drafted by his solicitor as in this action, the strict rules of pleading should be applied. I think that the principle obtainable in a case where formal pleadings have beed ordered is equally obtainable here."

23. In the same year in Chan Oi Ho v. The Hong Kong & Kowloon Carving Association (1965) D.C.L.R. 119 Williams D.J. declared:-

"The fact that the pleadings arise in District Court proceedings, does not avoid the strict rules of pleading when pleadings have been ordered."

24. The issue of pleadings in the District Court first appears to have come before the Supreme Court in Tang Woon Kai v. Tang Ting Chun (1970) H.K.L.R. 531. This was a decision of the Full Court. Referring back to the earlier argument in the District Court as to whether pleadings were to be strictly construed, Huggins, D.J. said this:-

"I would add this as there seems to have been no reported ruling by this Court on a point which, when I was sitting in the District Court, grew into what Mr. W.S. Gilbert would no doubt have called an "annual blister", namely whether pleadings in the District Court are to be construed with the same strictness as pleadings in the Supreme Court."

All these cases, of course, deal with a different issue to the issue before me. They support the view that where formal pleadings have been filed they are to be strictly construed. However, the judgment of Blair-Kerr J., in Tang Woon Kai v. Tang Ting Chun (Supra) is of interest because it approaches more closely the issue before me although again it is a decision on the Rules before the major amendments of 1970:-

"Pleadings are not required as of course in the District Court. They are only necessary when the Court makes an order therefor in which case the rules governing civil procedure in the Surpeme Court apply thereto. According to the record of the trial in this case, the judge extended the time for filing the defence and made an order limiting the time within which the Reply and Defence to the counterclaim should be filed. In other words, the parties (who were legally represented) appear to have chosen to file pleadings without any specific order by the Court; and whatever might be said in the case of a party appearing in person, there ca be no justification for any laxity in pleading if parties are legally represented. But quite apart from the question of whether the Court orders pleadings, s.33 of the District Court (Civil Jurisdiction and Procedure) Ordinance, Cap. 336, expressly requires a defendant to give written notice of any equitable defence."

25. So in that case, as a matter of fact, a Reply had been filed without an order of the Court, Blair-Kerr J., did not have to consider that precise issue but the judgment may be interpreted as implying that the proper course was to obtain leave before filing a reply.

26. Counsel for the plaintiff further submitted that whatever the position where parties appear in person, where they are represented either party should have the election to adopt the formal pleadings of the Supreme Court without leave. However attractive that submission may be there are major objections both in principle and in practice to having a twofold procedure in the District Court, namely a simple procedure for parties appearing in person and a more formal procedure where parties are represented. In any event neither the Ordinance nor the Rules provide for any such dichotomy. Before rejecting this submission I have also considered the judgments in Ko Bros Ltd. v. Chan Tin Wah (supra), Ling Che v. Foo Pui Hok & Anor. (supra), Chan Oi-Ho v. The Hong Kong & Kowloon Carving Association (supra) and Tang Woon Kai v. Tang Ting Chun (supra) on this point. In those cases it is true distinctions are made between represented and unrepresented parties. However, all those cases were concerned with the different and subsequent issue of the extent to which parties should be bound by their pleadings where an action proceeds to trial on the basis of formal pleadings.

27. I also recognise that there is no express power in the Rules to file a defence to a Counterclaim without leave. However, by virtue of Rule 9 of the District Court Civil Procedure (General) Rules I am of the view that Order 18 Rule 18 of the Rules of the Supreme Court applies to counterclaims in the District Court. Under Rule 18 the Rules are to be applied "as if the counterclaim were a statement of claim and the defendant making it a plaintiff;". In that event the plaintiff in the District Court action, may therefore, as of right and without leave, file a defence to the Counterclaim under Rule 21. However, it is equally clear that it is not open to a plaintiff to include a reply in the document containing the defence to a counterclaim. For Rules 9 and 34 of the District Court Civil Procedure (General) Rules impliedly exclude Order 18 Rule 3 of the Rules of the Supreme Court which permits that practice in the Supreme Court.

28. In approaching this issue it would be misleading to consider that it is merely concerned with a nicety of pleading. Whether leave is or is not necessary is an issue which has practical implications far beyond the mere interpretation of the Rule itself. For example if leave is required for all pleadings filed after a defence that will be material on taxation of a successful party's bill of costs. If a successful party has filed a reply or other documents requiring leave, without leave, then it would be within the discretion of the taxing master to disallow costs and disbursements in respect of any such documents filed without leave.

29. I appreciate that the conclusion I have arrived at is contrary to the earlier practice of this Court and conflicts with the present practice of Kowloon District Court. However, it seems to me that the provisions in the Rules are so clear that the conclusion I have reached is inevitable and inescapable. If I am wrong, then there is an obvious course open to the plaintiff. If I am right, it may be that there are now strong arguments for the District Court to adopt the same procedure as exists in the Supreme Court. These are matters upon which it would be improper for me in this judgment to express an opinion. But if the latter course is desirable then the District Court Civil Procedure (General) Rules are always open to amendment.

30. For the reasons given I therefore rule that pleadings close upon a defence - either to a claim or counterclaim - being filed or, if none is filed, upon the expiration of the time limited for filing. If, after a defence is filed, a party wishes to file further pleadings, he may only do so by leave of the Court.

Dated this 7th day of October, 1980.

Representation:

Mr. F.K. Au of Johnson, Stokes & Master for the plaintiff.

Mr. E. Cheung of Woo, Kwan Lee & Co. for the defendant.