Lam Ching-lung and Others v. Red Anchor Line Ltd

HCMP000016/1973

IN THE SUPREME COURT OF HONG KONG

(ORIGINAL JURISDICTION)

MISCELLANEOUS PROCEEDINGS NO.16 OF 1973

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Coram: Full Court (Blair-Kerr, S.P.J. and McMullin J.)

Date of Judgment: 27 February 1973

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JUDGMENT

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Blair-Kerr, S.P.J.:

1. The deceased, a seaman employed by the respondent company, died in Durban, South Africa, on 14th December 1970, as a result of injuries sustained in a traffic accident. All that is known is that he was on foot at the time and that he was struck by a taxi.

2. Some 15 months later (viz. 25th March 1972), the applicants filed their application for compensation under the Workmen's Compensation Ordinance. The respondent company filed their grounds of opposition on 14th April 1972; and the application was heard by the learned District Judge on 26th July 1972. In a written judgment which was handed down on 2nd August 1972, the District Judge dismissed the application.

3. A Legal Aid Certificate for purposes of appeal was signed on 23rd August 1972. It was endorsed on behalf of the Director of Legal Aid as follows:-

"...... I am of the opinion that the said appellant has good grounds of appeal ....

According to an affidavit filed by the applicants' solicitor, this Legal Aid Certificate reached his office on 26th August.

4. Section 23(4) of the Workmen's Compensation Ordinance Cap.282 reads:-

Notice of appeal should therefore have been filed not later than 1st September 1972. However, nothing whatsoever was done by the applicants or their legal advisers towards instituting an appeal until 19th January 1973 on which date they filed a notice of motion for leave to file a notice of appeal out of time. They invoked the proviso to s.23(4) which reads:

"Provided that the Full Court may, if it thinks fit, extend the time within which to appeal under this section notwithstanding that that time has elapsed."

In support of the application, the applicants' solicitor has filed an affidavit in which he says, inter alia:-

"Work on the file was delayed pending the arrival of the notes of proceedings which did not reach my said office till on or about 14th September 1972. ...... the delay has not been caused by any fault on the part of the applicant ...... the delay will not cause any injustice to the respondent or prejudice his case in any way. ......".

Counsel for the respondent company opposed the application and cited Ratnam v. Cumarasamy⁽¹⁾, Revici v. Prentice Hall Incorporated⁽²⁾ and Yim Chun Wah v. Chow Shek Fong⁽³⁾. The Ratnam⁽¹⁾ case was a decision of the Privy Council on appeal from the Court of Appeal of the Federation of Malaya. Under the Malayan rules, notice of appeal had to be filed within one month and the appeal was properly initiated in that notice of appeal was filed by the appellant personally on 2nd March 1962. The rules required that the record of appeal be filed within six weeks after the entry of appeal "or within such further time as the Court of Appeal may allow." The period of six weeks expired on 14th April 1962.

5. On 18th April the appellant's solicitors applied for an extension of time for filing the record of appeal; and the Court of Appeal dismissed the application.

6. Giving the judgment of the Judicial Committee, Lord Guest said (p.12):-

"The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules, which is to provide a time table for the conduct of litigation. The only material before the Court of Appeal was the affidavit of the appellant. The grounds there stated were that he did not instruct his solicitor until a day before the record of appeal was due to be lodged and that his reason for this delay was that he hoped for a compromise. Their Lordships are satisfied that the Court of Appeal were entitled to take the view that this did not constitute material upon which they could exercise their discretion in favour of the appellant."

In the Revici⁽²⁾ case, the appellant applied to the Master for leave to serve a writ out of the jurisdiction. On 5th April 1968 Master Jacob gave his written decision refusing leave. By consent the appellant was given 11 weeks in which to appeal. The 11 weeks expired on 19th June 1968. On 19th July 1968 the appellant served notice of appeal. The judge refused to extend the time for appealing, but gave leave to appeal to the Court of Appeal. Dismissing this latter appeal, Lord Denning said (p.159):-

"Mr. Colin Duncan referred us to the old cases in the last century of Eaton v. Stores⁽⁴⁾ and Atwood v. Chichester⁽⁵⁾, and urged that time does not matter as long as the costs are paid. Nowadays we regard time very differently from the way they did in the 19th century. We insist on the rules as to time being observed. We have had occasion recently to dismiss many cases for want of prosecution when people have not kept to the rules as to time. So here, although the time is not so very long, it is quite long enough. .......... not a single ground or excuse is put forward to explain the delay and why he did not appeal."

And Edmund Davies, L.J., said (p.160):-

"The real question raised by this appeal is simply this: when a party has exceeded to a substantial degree the time limit set by the Rules of the Supreme Court within which an interlocutory step has to be taken, can it be said that he is entitled to have his time extended merely on undertaking to pay any costs occasioned by his delay, so that a judge who nevertheless refuses to extend his time must necessarily be regarded as having exercised his discretion wrongly. The very first ground of the notice of appeal herein submits (in effect) that that calls for an affirmative answer, certainly in cases where it is not shown that the other side have suffered irreparable damage as a result of the delay. I disagree. On the contrary, the Rules .... are there to be observed; and if there is non-compliance (other than of a minimal kind), that is something which has to be explained away. Prima facie, if no excuse is offered, no indulgence should be granted."

7. In the Yim Chun Wah case⁽³⁾, Mr. Justice Huggins, giving the judgment of the Full Court, said (pp.130/131):-

"... I agree that if one accepts the premise that there was no duty to serve and file notice of appeal until a Legal Aid Certificate had been issued [the appellant and his advisers] cannot be blamed ...... However, 0.59 r.4 is designed to warn the opposing party of an intended appeal and his need to be so warned is in no way affected by the appellant's negotiations for legal aid. It is prejudice enough for any litigant that he is opposed by a legally aided person and I see no reason why he should be further prejudiced by prolonged uncertainty whether he is to be allowed to enjoy the fruits of his judgment. There seems to be no sufficient reason why a party who wishes to appeal should not personally incur the small cost of serving and filing notice of appeal. If solicitors are employed for this purpose and a Legal Aid Certificate is subsequently issued notice can be served by the solicitors on the Director under reg.10(2) of the Legal Aid Regulations ......".

8. The Full Court handed down the decision in the Yim Chun Wah case⁽³⁾ on 24th March 1972. Despite that, since that date there has been at least 2 applications to the Full Court for extensions of time in which the only excuse offered has been that the solicitors were waiting for the Legal Aid Certificate. In this case, the applicants and their advisers do not even have that excuse to offer. As I have said, the Legal Aid Certificate was issued on 23rd August 1972. And to say that "work on the file was delayed pending the arrival of the notes of proceedings" is no excuse at all. The notice of appeal should have been filed within the 30 days allowed, irrespective of whether or not the Director had issued his Legal Aid Certificate and irrespective of whether or not a transcript of the notes of evidence had been received.

9. But the matter does not end there. From 14th September 1972 till 19th January 1973, the applicants and their solicitors sat back and did nothing whatsoever towards initiating the appeal. To say that "the delay has not been caused by any fault on the part of the applicant" is presumably an oblique way of saying that it was all the fault of the solicitors. But again this court cannot be expected to embark upon an inquiry as to the relationship of solicitor and client with a view to deciding whether it was solicitor or client who was to blame.

10. It would appear that in Hong Kong would-be appellants, and their advisers, are labouring under a misapprehension that this court will rubber stamp any application for an extension of time, no matter what the circumstances. The sooner it is realised that this is not so, and that our civil procedure rules are there to be obeyed, the better. As Edmund Davies, L.J., said in Revici⁽²⁾ (p.160):-

".... if there is non-compliance (other than of a minimal kind) that is something which has to be explained away."

And many of the excuses which have been put forward to this court recently are just not good enough.

11. For the above reasons, the application for an extension of time within which to file notice of appeal is dismissed with costs.

Representation:

D. Chang (Gordon Hampton & Winter) for applicants.

R. Mills-Owens (Johnson, Stokes & Master) for respondent.

(1) [1965] 1 W.L.R. 8

(2) [1969] 1 W.L.R. 157

(3) [1972] H.K.L.R. 129

(4) [1882] 22 Ch. D. 91

(5) [1878] 3 Q.B.D. 722