Lau Sau-mui Fanny v. Pacific Realty Ltd

Case No.DCCJ 2745/1981

Court

District Court

Date—

Judge—

Case Document

100%Judiciary

DCCJ002745/1981

Civil Procedure - whether body corporate may file pleadings in District Court other than through a solicitor - whether body corporate has a right of audience in District Court other than through a solicitor or counsel - Section 15(1)(d) District Court Ordinance, Cap. 336, Rules 9, 21 and Schedule of District Court Civil Procedure (General) Rules, Order 12, Rule 1(2) Rules of Supreme Court, Cap. 4.

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 2745 OF 1981

-----------------

BETWEEN
	LAU Sau-mui Fanny	Plaintiff
AND	Pacific Realty Limited

-----------------

Coram: Judge Cruden

Date of Judgment: 21st May, 1981.

-----------------

JUDGMENT

-----------------

1. I have before me a summons by the plaintiff for an order to strike out the defence and counterclaim filed by the defendant Company on the ground of irregularity. The alleged irregularity is particularised in the affirmation filed in support of the summons, namely that by virtue of Order 12 Rule 1 (2) of the Rules of the Supreme Court, a Company may not defend an action otherwise than through a solicitor.

2. The defendant Company purports to act in person and a detailed defence has been filed signed by a director and is expressly pleaded to have been filed by him for and on behalf of the Company.

3. This summons raises yet again the care that should be taken before concluding that a particular Rule of the Supreme Court applies to the District Court.

4. Rule 9 of the District Court Civil Procedure (General) Rules, Cap. 336 provides that the Rules of the Supreme Court shall apply in the District Court subject to two important exceptions which may be summarised as follows:-

	(a)	Subject to the District Court Ordinance or the Rules thereunder excluding or modifying by implication or otherwise the application of any Rule of the Supreme Court.
	(b)	Subject to the exclusion of those Rules of the Supreme Court listed in the Schedule to the District Court Civil Procedure (General) Rules which are expressly stated by Rule 9(2) not to apply to the District Court.

5. I recognise that at times, there may be difficulty in applying the first exception for it is not always clear whether a particular Rule of the Supreme Court has been excluded or modified by implication.

6. However, under the second exception no difficulty arises for the Schedule lists each of the Rules of the Supreme Court which do not apply in the District Court. This summons relies on Order 12 Rule 1(2) of the Supreme Court applying the District Court. But Order 12 is the first Rule of the Supreme Court which is excluded by the Schedule from application in the District Court. The summons must therefore fail.

7. No doubt one of the reasons why Order 12 is expressly excluded, is because of the less formal procedure followed in the District Court. In particular Section 15 of the District Court Ordinance provides for a wider right of audience than in the Supreme Court. In addition to the right of a party to address the Court in person or through his barrister or solicitor, the Section goes on to provide that the Court may be addressed by:-

"(d)

any person allowed by leave of the Court to appear instead of a party to the proceedings."

8. After considering the provisions of the District Court Ordinance, the District Court Civil Procedure (General) Rules and the Rules of the Supreme Court, I have come to the following conclusions:-

A defence or counterclaim in the District Court is filed pursuant to Rule 21(1) of the District Court Civil Procedure (General) Rules. I am satisfied that the reference to defendant therein includes a corporate body. A corporate body, such as the defendant, may sign a defence or counterclaim either by itself or by its solicitor or counsel. If it elects to file the defence personally then it may be signed either under seal or, as in the present case, for an on behalf of the Company by a director or other authorised officer.

9. I am aware of the fact that Rule 21 does not expressly refer to a company or corporate body and indeed provides for a defence or counterclaim to be signed by the defendant "himself or his solicitor or counsel". However the scheme of the District Court Ordinance and the rules thereunder clearly includes a Company or a corporate body within the meaning of person. I am fortified in coming to this conclusion by the provisions of Section 3 of the Interpretation and General Clauses Ordinance, Cap. 1 which includes the following definition:-

"person" includes any public body and any body of persons, corporate or unincorporate ....."

That definition applies to all our Ordinances "save where the contrary intention appears". No such contrary intention appears in the District Court Ordinance nor in Rule 21.

When the action comes on for hearing or when any interlocutory or other application comes before the Court, if the Company does not then elect to instruct a solicitor or Counsel, it must obtain leave under Section 15(1)(d), for a person to appear on its behalf.

10. No such leave is necessary as far as filing any pleading is concerned. Leave is solely required if the corporate body wishes to exercise a right of audience and address the Court other than through a solicitor or Counsel.

11. I therefore, hold that the defence and counterclaim have been properly filed under Rule 21. I confirm that pursuant to Section 15(1)(d) I have granted leave to Mr. Thomas Young to address me on behalf of the defendant Company on this summons and subject to any further order of the Court at any subsequent hearing.

12. For these reasons, this summons must be dismissed. I allow this defendant Company the costs of this summons which I fix at $100.

DATED this 21st day of May, 1981.

	(G.N. Cruden)
	District Judge

Representation: