Gouw Kioek Lan and Others v. Thians' Plastic Industrial Co Ltd and Others

HCA001640/1969

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION NO.1640 OF 1969

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Coram: Hon Blair-Kerr J. in Chambers.

Date of Judgment: 26th April, 1971.

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DECISION

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1. This is an application by the defendants under O.18 r.19 and the inherent jurisdiction of the court for an order that the statement of claim be struck out and the action dismissed or stayed on the ground that the pleading "is unintelligible and/or discloses no reasonable cause of action".

2. This action is one of three related actions (O.J.1640/69, O.J.773/69 and O.J.83/69). On 17th November 1970 I gave a decision on an interlocutory application in O.J.773/69 that certain lis pendens registrations be vacated; and I dealt at some length with the history of the dispute as it then appeared from the affidavits.

3. On this occasion, I propose to say as little as possible. However, certain points have to be mentioned. Firstly, I took a full note of the submissions of counsel - indeed it was practically a verbatim note. I have had it transcribed; and I am adopting the rather unusual course of sending a copy to the parties so that they may know precisely what submissions were made. I therefore do not propose to repeat here the substance of those submissions.

4. Secondly, there is no doubt at all that the statement of claim is a badly-drafted pleading. Essential facts have not been pleaded; and the prayers for relief appear to be defective in a number of respects. Amongst other things, it is far from clear what relief is being claimed against each defendant. Counsel for the plaintiffs frankly admitted that the document would have to be amended; but I do not know in what respects. I am not, therefore, in a position to deal with what counsel for the plaintiffs described as "points of law". Counsel for the defendants did raise several points of law. His argument was that even if certain facts will, eventually, be pleaded, they will not be such as to constitute a cause of action. But I simply do not know what amendments the plaintiffs now intend to make.

5. Therefore, I do not propose to rule at this stage as to whether or not the statement of claim discloses a cause of action, or whether it is "unintelligible" or otherwise. It is sufficient for the present to say that the defendants were justified in saying that they should not be called upon to plead in answer to the statement of claim as it stands at present. The defects in the plaintiffs' pleading are not such as would be curable by "further and better particulars".

6. It is up to plaintiffs to state in clear simple language all essential facts necessary to constitute their cause of action. A defendant should not have "to infer" what a plaintiff's case is. It may be very convenient for a plaintiff to phrase his statement of claim in such a way as to leave it open to argument that certain matters of fact may be "inferred" so that, (depending on which way "the wind blows" at the trial), it may be argued that "the inference" from such-and-such a paragraph justifies a certain course of action. But that is not the proper way to plead a case. There is certainly nothing wrong in pleading in the alternative. But the essential facts must be pleaded; and it should be made crystal clear what the alternatives are, and what the case against each defendant is.

7. It is perhaps not without significance that in resisting the defendants' application, counsel for the plaintiffs almost immediately referred to my decision dated 17th November 1970 in O.J.773/69. As to that, I need hardly point out that if and when this action (O.J.1640/69) comes to trial, it will be tried on its own pleadings and not on what may, or may not, have been said upon an interlocutory application in a related action.

8. However, in deciding whether to accede to this application, (certainly in so far as the defendants seek an order that the action be dismissed) I do not think that there is any objection to my having regard to the fact that this action is one of three related actions, and that I know broadly what the dispute is about; and obviously it is not the sort of case one sometimes finds in which a crank believes he has a grievance (real or imaginary, perhaps of a moral or sociological nature) and he attempts to make it justiciable by instituting in these courts a frivolous action which has no hope of succeeding. From what I know of the case, there may well be a cause of action justiciable in these courts; and it is for that reason that I do not propose to give any ruling on this application, at any rate, at this stage.

9. The application is therefore adjourned sine die with liberty to either party to apply to have it restored. This will give the plaintiffs an opportunity to file their amendments, which may, or may not, be extensive. It is up to them. I am certainly not going to tell them how they should plead. If they think it better to withdraw the present statement of claim and file a fresh pleading, they may do so. It is up to them. All I hope is that, whatever course is adopted, the document which may eventually come before the court at the trial will not be one of those statements of claim that has been amended, and re-amended again and again to such an extent that it looks more like a rainbow than a pleading. The defendants are entitled to know now precisely what the plaintiffs' case against each defendant is before they are called upon to plead.

10. As regards costs, I do not think it avails the plaintiffs to say that this application has been instituted by the 3rd defendant for the sole purpose of delaying the action coming on for trial. In this connection, counsel for the plaintiffs referred to another application made by the defendants shortly after the writ was filed at the beginning of 1970. As far as I can see from the file, there was nothing objectionable in the defendants' conduct on that occasion. A number of infants resident out of the jurisdiction were on the books as plaintiffs suing without a next friend and without having given any address out of the jurisdiction. This was another example of the rules not being observed; and Scholes J. ordered them to comply with the rules and made them pay the defendants' costs of the application.

11. As regards this application, I am unable to say at this stage what, if any, ulterior motives the 3rd defendant may have. I have not seen him. All I know is that I have no alternative but to agree with him that the statement of claim, as it stands at present, is defective.

12. Nor does it avail the plaintiffs to say that this application was made without prior warning and 4 months after counsel for the defendants was instructed to settle a defence. It may be that it would have been more courteous for the 3rd defendant to have pointed out to the plaintiffs by letter in what ways he considered the statement of claim to be defective. But the 3rd defendant and the attorney for the plaintiffs appear to be so much "at daggers drawn" that each can expect little in the way of courtesy from the other. Each stands firmly on his legal rights; and these applications which come before the court in these 3 related actions have to be looked at accordingly. Looked at in this way, it is not for the defendants to tell the plaintiffs how to plead. If the latter choose to file a defective pleading, they do so at their own risk, so far as the 3rd defendant is concerned.

13. Prior to the hearing of this application the plaintiffs gave no indication whatsoever that they intended to apply for amendment of the statement of claim. Indeed, their approach, even now, appears to be:- "Let us see how the defendants plead, and let us see what we can find out upon discovery, and then we shall commit ourselves as to what our claim is." It was only after the obvious defects in the statement of claim had been pointed out by counsel for the defendants during the hearing of this application, that counsel for the plaintiffs said frankly that the statement of claim would have to be amended. Therefore, in all the circumstances, I think that the plaintiffs, in any event, must pay the defendants' costs to date in connection with this application; and I so order. It is certified fit for counsel.

26th April, 1971.

Representation:

Bernacchi, Q.C. and Asome (Brutton & Stewart) for Plaintiffs.

Litton, Q.C. and D. Cheng (Ho & Wong) for Defendants.