Yeung Kei Sing v. Hing Lung Construction Co. Ltd. and Another

DCEC000427/2000

DCEC427/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 427 OF 2000

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Coram: Deputy District Judge S.M. SHAM in Chambers

Dates of Hearing: 20 March 2002

Date of Handing Down Decision: 22 March 2002

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Decision

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1.This is an application by the respondents to set aside my Consent Order dated 22nd January 2002 pursuant to O. 2 r.2 of the Rules of District Court and inherent jurisdiction of the court.

2.The background of the case is this; the applicant claimed against the respondents for compensation under Sections 9, 10 & 10A of the Employees' compensation Ordinance in respect of an accident allegedly occurred on 17th May 1998 in the course of employment. Parties through their legal representatives had since 13th December 2001 engaged in a series of negotiations with a view to a settlement, and on 21st January 2002, they eventually came to a settlement. Parties had drawn up a drafted Consent Order containing their agreed terms and duly signed on it. Such drafted Consent Order was placed before me on 22nd January 2002 for approval. On the face of it, I found no irregularity and therefore approved it. After the Order was made, however, the respondents discovered that their terms did not contain a reference as to a sum of money amounting to HK$ 201,600 which was already paid to the applicant by the respondents as periodic payment. In other words, the respondents are now saying that they had consented to a settlement for too much.

3.The basis upon which the respondents rely in setting aside the Order is that during the course of negotiations, it did not occur to any parties that there was such a periodic payment already made out to the applicant, and that constituted a mutual misunderstanding or mistake between the parties which prevented there being an effective agreement.

4.At the outset of the hearing, I raised the question of jurisdiction with the parties for I was concerned whether the court had power to deal with such an application to set aside its own Order in the circumstances. Basically, the respondents argued that so long as the court was satisfied that there was mutual mistake between the parties when reaching the settlement, the court has power to rectify such irregularity by setting aside the settlement pursuant to O.2 r.2 and/or under its own inherent jurisdiction. The applicant, however, submitted that the Order in question was a final order and liberty to apply limited to for purpose of implementing its terms.

5.As far as Order 2 is concerned, I am of the view that such order does not apply to the present case, because by virtue of O.1,r 2, it is provided clearly that the Rules of the District Court shall not have effect in relation to proceedings for the recovery of employees' compensation under the Employees' Compensation Ordinance.

6.Regarding the respondents' present application, what they asked the court to do, in my view, is in effect to review its own order by setting it aside on the basis of mistake. Before the amendment in 1993, the court had the power to review its judgments and orders; such power was set out in Section 53 of the old version of the District Court Ordinance but was repealed in 1993. Section 53 provided that " ..............................., a judge, on such grounds as he may think sufficient and within one month from the date of any judgment or order given or made by him, may decide to review any such judgment or order and on such review may re-open and re-try the case, wholly or in part, and may take fresh evidence and may reverse, vary or confirm his previous judgment or order..................................The power may be exercised by a judge

of his own motion, on notice to all parties to the proceedings; or on the application of any party to the proceedings, on notice to the other party......" Quite clearly, the court now does not have the power to review its own judgment or order since the amendment in 1993 which took away such discretion.

7.For the reasons given, I conclude that I have no power or jurisdiction to deal with the present application by the respondents , that being the case, I need not go on to consider the merit of the application and therefore, the summons is dismissed accordingly.

8.Costs of this application be to the applicant with certificate for counsel, to be taxed if not agreed. I make the costs order nisi and such order shall become absolute at the expiration of 14 days from the date of handing down the decision. The applicant's own costs be taxed in accordance with the Legal Aid Regulations.

Representation:

Mr. Neal John Clough instructed by Messrs. Henry H.C. Wong & Co. assigned by D.L.A. for the Applicant.

Ms Wanda Tong of Messrs. Simmons & Simmons for the 1st & 2nd Respondents.