Caroline Anne Babington v. Fung Hing Biu
Read the full judgment text of DCCJ 3776/1980 on BabelCite. This District Court judgment.
1. On the 4th June 1980, the plaintiff, an infant aged 10 years, suing by her father and next friend, instituted proceedings against the defendant claiming damages for injuries received when she was bitten by the defendant's dog. A defence was duly filed on the 16th June 1980. On the 23rd July 1980, upon application made on behalf of the plaintiff, Judge Moylan ordered, inter alia, that the plaintiff have liberty to file a reply to the defendant's defence within 7 days of the order and that an a
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DCCJ003776/1980 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA CIVIL JURISDICTION ACTION NO. 3776 OF 1980 -----------------
----------------- Coram: H.H. Judge Corcoran in Court Date of Judgment: 4th March, 1981 ----------------- JUDGMENT ----------------- 1. On the 4th June 1980, the plaintiff, an infant aged 10 years, suing by her father and next friend, instituted proceedings against the defendant claiming damages for injuries received when she was bitten by the defendant's dog. A defence was duly filed on the 16th June 1980. On the 23rd July 1980, upon application made on behalf of the plaintiff, Judge Moylan ordered, inter alia, that the plaintiff have liberty to file a reply to the defendant's defence within 7 days of the order and that an application for a fixture for the trial of this action be made by the plaintiff within 7 days of the filing of the reply. The order further provided for filing of lists of documents within 14 days of the filing of the reply and for inspection of documents. 2. The plaintiff's reply was filed on 25th July 1980 and the plaintiff and defendant filed their lists of documents (out of time by consent) on the 20th August and 3rd September respectively. 3. The plaintiff failed to apply for a fixture for the trial of the action with the time fixed by the Judge's order i.e. within 7 days of the filing of the reply. The plaintiff now asks the Court for an order that she be at liberty to apply for a fixture for trial notwithstanding that the time limited for doing so by the Judge's order has expired. 4. Rule 31(2) of the District Court Civil Procedure (General) Rules provides:
5. Rule 24 provides for an application by either party to the Registrar to fix a date for trial. There is no obligation upon a party to apply for a date of hearing to be fixed but Rule 31(2) provides that if no such application is made within 3 months from the date on which the defence or counterclaim is filed the Registrar shall strike out the action from the Register of Civil Actions. In this case the 3 months period expired on 24th September 1980. The Registrar has not yet made an order striking out the action from the Register of Civil Actions. 6. Mr. Stevens has referred me to Rule 9 of the District Court Civil Procedure (General) Rules and Order 3(5) of the Supreme Court Rules. Rule 9 of the District Court Civil Procedure (General) Rules provides that subject to the application of the District Court Ordinance and the District Court Civil Procedure (General) Rules, the Supreme Court Rules shall apply to proceedings in the District Court with such modification as may be necessary. Certain provisions in the Supreme Court Rules are expressly excluded but Order 3(5) is not one of them. 7. The relevant provision of Order 3(5) of the Supreme Court Rules read as follows:
8. Mr. Stevens argued that by virtue of these provisions I have the power grant the order sought. 9. Mr. Ho says that he cannot consent to such an order being made because I do not have the jurisdiction to make the order. He argues that Rule 31(2) is mandatory and that therefore Order 3(5) of the Supreme Court Rules does not apply. 10. In Tse Tsun-man v. The Kowloon Motor Bus Co. (1933) Ltd. 1971 D.C.L.R. 39, the Deputy Registrar made an order under Rule 31(2) striking out the action from the Register of Civil Actions where no application was made to fix a date for trial within 3 months after the defence had been filed. The plaintiff took out an inter parte summons 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. The Court, holding that the order of the Deputy Registrar under Rule 31(2) terminated the action, so that the District Court was functus officio, dismissed the application. 11. The difference between that case and the present application is that the Registrar has not yet made his order striking the action from the Register. The Court is therefore still seized of the action. 12. I am of the view that the wording of Rule 31(2) does not prevent the application of Order 3(5) of the Supreme Court Rules in this case, and that Order 3(5) is wide enough to include the act of striking out an action under Rule 31(2). It is a case where the plaintiff's solicitors have been at fault but the plaintiff should not thereby be prevented from proceeding with her action. Mr. Ho's objection to the making of an order was on the basis that the Court had no jurisdiction to extend the time under Rule 31(2). He did not object to such an order if I held I had jurisdiction to make it but felt he could not consent. 13. I therefore make an order extending the time within which the plaintiff shall apply for a fixture for the trial of this action to the 21st April 1981 and extending the period within which the Registrar shall strike the action from the Register of Civil Actions from the period specified in Rule 31(2) to the 21st April. 14. The plaintiff shall pay to the defendant his costs in relation to this application taxed on the upper scale.
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