Wong Fat-chuen v. Bachy Soletanche Group

DCEC000142/1978

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CIVIL JURISDICTION

WORKMEN'S COMPENSATION CASE NO.142 OF 1978

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Coram: A.L. Leathlean, D.J.

Date of Judgment: 17 January 1979

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REASONS FOR ORDER

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1. In this matter the accident is said to have occurred on November 2nd, 1977. The application is dated October 4th, 1978. The applicant workman claims that he is suffering from neuro-post concussion and total deafness of his right ear as a result of injuries which were inflicted upon him while he was protecting the respondent employers' property.

2. No answer had been filed when the matter first came before me on November 14th, 1978. However, I gave leave to the respondent to file an answer out of time within 14 days upon the latter's application. Mr. Moss for the applicant did not oppose that application, but referred me to rule 38 of the District Court Civil Procedure (General) Rules, and asked me to order that the respondent be debarred from defending if an answer was not filed within that time. Rule 38 provides as follows:

"The Court may, whether before or after the time limited for the filing of any pleading and whether such limitation be by these rules or by the Court, extend the time allowed therefor on such terms as it may think fit."

In the circumstances I was of opinion that such an order was appropriate, and accordingly made it. The matter next came before me on December 19th, 1978. On that occasion the res-pondent was represented by a solicitor, who applied for yet another extension of time within which to file an answer. It transpired that he was not instructed until after the expir-ation of the extension of time which was granted on November 14th. He sought to rely upon Order 3, rule 5 of the Rules of the Supreme Court. This time, however, the application was opposed on the ground that I had ordered that the respondent be debarred from defending in default of filing an answer within 14 days of November 14th.

3. Order 3, rule 5 of the Rules of the Supreme Court is not inapplicable to the District Court, but rule 9(1) of the District Court Civil Procedure (General) Rules provides as follows:-

"9(1) Subject to the provisions of the Ordinance and of these rules, the Rules of the Supreme Court as for the time being enacted and save as it therein may otherwise be provided shall apply to proceedings in the Court as they apply to proceedings in the Supreme Court with such modifications as are necessary for that purpose."

4. Section 53 of the District Court Ordinance, so far as material, provides as follows:-

5. I was of opinion that section 53 of the District Court Ordinance applied to my order of November 14th debarring the respondent from defending if no answer was filed within 14 days. Accordingly, no application for any review of that order having been made within one month of its date, I dismissed the application for a further extension of time within which to file an answer.

6. I might perhaps add that at the last hearing Mr. Moss also sought to oppose the application for a further extention of time within which to file an answer on the ground that the respondent had previously admitted in correspondence and other documents various matters which it was then seeking to deny in its proposed answer, but I did not explore this allegation.

7. Dated this 17th day of January 1979.