Chung Wo Sang Future v. Tai Lin Radio Service Ltd

HCMP003042A/2003

HCMP 3042 of 2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 3042 OF 2003

(ON APPEAL FROM HCLA NO. 112 OF 2002)

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Coram: Hon Yeung JA and Yuen JA in Court

Date of Hearing and Decision: 5 September 2003

Date of Reasons for Decision: 10 September 2003

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REASONS FOR DECISION

ON DEFENDANT'S RIGHT OF AUDIENCE

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Hon Yuen JA (giving the Reasons for Decision of the Court):

1.On 5 September 2003, there was listed for hearing the Claimant's renewed application to the Court of Appeal for leave to appeal against a judgment of Deputy Judge Andrew Cheung (as he then was) allowing the Defendant's appeal from a judgment of the Labour Tribunal.

2.The Defendant sought to appear by counsel to oppose the application. We had doubts whether the Defendant had the right to address the Court on the application and invited counsel to make submissions to us on that issue only.

3.After hearing submissions, we decided that the Defendant had no right of audience on the application. We indicated that we would reduce the reasons for that decision into writing, to be handed down in due course. We do so now.

4.On 14 July 2003, the Claimant (who is not legally represented) issued an application under Order 59 rule 14(2)(b) of the Rules of the High Court for leave to appeal, pursuant to s.35A Labour Tribunal Ordinance cap. 25.

5.Order 59 rule 14(2)(b) RHC provides:

"An application to the Court of Appeal for leave to appeal shall -

(b) be made ex parte in writing setting out the reasons why leave should be granted ...

and the Court may grant or refuse the application or direct that the application be renewed in open court either ex parte or inter partes".

6.On 22 July 2003, Cheung JA refused leave without a hearing.

7.On 28 July 2003, the Claimant renewed his application under Order 59 rule 14(2A) RHC which provides:

"If an application under paragraph (2) is refused otherwise than after a hearing in open court, the applicant shall be entitled within 7 days after he has been given notice of the refusal, to renew his application; such renewal application shall be ex parte in open court made" (emphasis supplied).

8.It is therefore clear on the rules that the renewal application that was before us should be ex parte. Mr Beresford, counsel for the Defendant, submitted that he should nevertheless be heard for the following reasons:-

(a) the Claimant had served the Notice of application for leave to appeal and the Summons for the renewal application on those instructing him;

(b) his instructing solicitors had received a letter from the Court in reply to an application by the Claimant for an adjournment of the hearing listed for 5 September 2003, the reply being to the effect that the matter will be dealt with on that day;

(c) irrespective of Order 59 rule 14(2A) RHC, this court could direct an inter partes hearing.

9.Dealing first with point (a), it is clear from the Notice and the Summons that the Defendant had not been made a party to either. First, the Notice is not addressed to the Defendant as respondent. This is consistent with Order 59 rule 14(2)(b) RHC which has been set out above. Secondly, as for the Summons, the name of the Defendant does not appear anywhere, save in the title of the action. The part of the Summons where the issuer is required to fill in the name of the party to be served (or its solicitors) had been left blank.

10.The fact that the Claimant had sent a copy of the Notice and the Summons to the Defendant's solicitors did not amount to service for the purposes of making the Defendant a party to the application. The Claimant said that he had sent them as a matter of courtesy to the Defendant. Although there was no covering letter that said that, nor was there anything otherwise, so that the Notice and the Summons spoke for themselves, and as noted above, the Defendant had not been made a party to either.

11.As for point (b), we do not read the brief letter from the Court as indicating anything other than that the Claimant's application for an adjournment of the renewal application would be dealt with on 5 September 2003. It could not be read as a direction under Order 59 rule 14(2)(b) RHC that the renewal application for leave to appeal be made inter partes.

12.If the Defendant had been in any confusion as to the stage to which the application had progressed, it could have searched the court file, which would have revealed that the paper application had been refused by Cheung JA on 22 July 2003 and that the application listed for 5 September 2003 was the Claimant's renewal application, which Order 59 rule 14(2A) RHC provides "shall" be made ex parte.

13.As for point (c), we do not see how this court at this stage of the proceedings under Order 59 rule 14(2A) RHC (as distinct from the single judge considering the matter on paper under Order 59 rule 14(2)(b) RHC) could direct an inter partes hearing in light of the clear wording of Order 59 rule 14(2A) RHC.

14.By reason of the matters above, we decided that the Defendant had no right of audience on the application before us. As the Claimant was not represented and the matter did not take much time, we made no order as to costs.

Representation:

The Claimant, in person, present.

Mr Roger Beresford instructed by Baker & McKenzie for the Defendant