Cheung Lee Warehouse & Transportation Ltd v. Berthier Godown Ltd

HCMP002827/1984

BETWEEN:

Coram: Roberts, C.J., McMullin, V.P. & Silke, J.A.

Date: 13 November 1984

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JUDGMENT

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Roberts, C.J. -

1. This is an application, which is expressed in the Notice of Motion as being for an order that the appellant should be at liberty to appeal notwithstanding the expiry of the time limited by the Rules of the Supreme Court for so doing.

2. The Notice of Motion is inaccurate to the extent that leave to appeal has already been given by the trial judge. What the Notice of Motion should have sought was an extension of the time within which notice of appeal should be served, which is 14 days from the date on which leave to appeal is granted.

3. Making due allowance for the fact that the appellant's solicitors, like most other Solicitors in Hong Kong, are extremely busy, nevertheless the history of this matter does show an unfortunate degree of delay on their part, which has to be taken into account when we decide whether or not we should exercise our discretion to extend a period of time.

4. Judgment, which is the foundation of this application, was given by a District Court Judge on 15th June this year, in favour of the plaintiff.

5. The District Court Ordinance provides that leave to appeal against a determination of a judge in the District Court must be sought within 14 days from the delivery of the judgment, i.e. by 29th June. Application for leave was not made until 27th July.  The application was heard on 29th August.

6. Thus the appellant was badly out of time in his initial application for leave to appeal. The affidavit which is before us, in support of this motion, does not give any explanation for that delay. We have, however, looked at the trial judge's file, in which there appears a record of the hearing of that application. It appears from this that the explanation was that the counsel concerned was away from Hong Kong during part of the relevant period.

7. On 29th August the trial judge gave leave to the appellant to appeal against his judgment. 29th August being in vacation, the 14 days within which the Notice of Appeal should have been served dial not begin to run until 12th September and would have expired on 26th September. It was not, however, until the 13th October that the draft Notice of Appeal was served. Once again, therefore, the appellant was out of time.

8. The affidavit of Mr. Charles Yuen, Assistant Solicitor in the employ of the solicitors appearing for the appellant, explains this delay as due to a pressure of work.

9. As Mr. Pirie has properly conceded, the rules as to time and as to other requirements in the Rules of the Supreme Court are there to be obeyed and not to be infringed without adequate reason.

10. We cannot say that we regard mere pressure of work on the part of the legal advisers of a party as, in the absence of special circumstances, necessarily constituting a good excuse for not meeting the various deadlines imposed by the rules.

11. However, the overwhelming interest in these matters is the interest of the client; and the courts are very properly reluctant to penalize clients for the dilatoriness of their legal advisers. It is because we feel that the interests of the appellant lay client are paramount, that we are prepared to exercise our discretion to extend the time within which notice of appeal can be served.

12. Accordingly, we will extend the time for service of the Notice of Appeal to 7 days from to-day, which is 20th November. This must, of course, be on the basis that the costs of this application will be paid by the appellant in any event. We further order, taking account of the interests of the client who is, as far as we know, quite blameless in the matter, that these costs should be paid by the appellant's solicitors personally and not by the appellant himself.

Representation:

Mr. N. F. F. Pirie (Johnson, Stokes & Master) for Appellant/Defendant

Mr. W. C. K. Yeung (Kenneth W. Leung & Co.) for Respondent/Plaintiff