Read the full judgment text of HCA 5617/2000 on BabelCite. This High Court CFI judgment was delivered on 8 October 2001 before Deputy High Court Judge McCoy SC.
Civil procedure – discovery and inspection of documents – O.24, r.10(1) and O.24, r.11(1) of the Rules of the High Court – appeal out of time under O.3, r.5 and O.58, r.1(3) – modern approach to extensions of time – copyright and breach of confidence claim by former employer against ex-employees and a competing company – plaintiff designs and markets computer motherboards – defendants set up competing company – bare PCBs sent to mainland China (Gilidi) and Taiwan (Ya Hsin/Wideland) for assembly – inspection of Hong Kong Customs & Excise documentation sought under O.24, r.10(1) on basis defendants' affirmation 'referred to' those documents – defendants denied possession, custody or power – Master ordered inspection – defendants appealed 26 days late – whether time to appeal should be extended – whether Master's Order should be sustained. Held, granting extension of time but dismissing the appeal: (1) time extended – the strict, punitive approach of Ratnam v. Cumarasamy, Revici v. Prentice Hall and Savill v. Southend Health Authority is outmoded in Hong Kong; the modern evaluative approach of Finnegan v. Parkside Health Authority (as adopted by Hartmann J in Mobil Petroleum) applies, with merit/prospect of success the dominant consideration. (2) O.24, r.11(1) confers jurisdiction to order inspection of documents not in a party's possession, custody or power, the deliberate omission of such a requirement being intentional (Rafidain Bank v. Agom Universal Sugar Trading; Dubai Bank v. Galadari (No.2)). (3) The Customs & Excise documents were 'referred to' in Mr Kong's affirmation; an exhibit is part of an affidavit (Re Hinchcliffe; Dynamic Way; Shun Kai Finance), overruling the narrow reading in Bank of India. (4) 'Fair disposal' under O.24, r.13 encompasses all stages of a cause or matter, not just trial. (5) On the facts, Gilidi and Ya Hsin were in such close mercantile/commercial relationship with the defendants (Gilidi acting as their customs agent) that the documents were realistically obtainable; the defendants' belated and feeble attempts to obtain them from the third parties did not discharge the onus of showing good cause against inspection. Order of Master Jones affirmed; appeal dismissed with forthwith costs nisi to the plaintiff in any event under O.42, r.5B(6).
Legal issues: Extension of time for late-filed appeal under O.3, r.5 / O.58, r.1(3) RHC · Whether customs and excise documents were 'referred to' under O.24, r.10(1) RHC · Jurisdiction to order inspection of documents not in party's possession, custody or power under O.24, r.11(1) · Exercise of discretion under O.24, r.11(1) to sustain inspection order
Outcome: Appeal dismissed. Extension of time to appeal granted, but the Order of Master Jones under O.24, r.11(1) RHC affirmed.
Cited by 2 cases