Attorney General v. Wing on Bank Ltd and Others

HCSA000008/1984

BETWEEN:-

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Coram: The Honourable Mr. Justice Jones in Court.

Date of hearing: 7th June 1984

Date of delivery of judgment: 7th June 1984

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JUDGMENT

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1. This is an appeal by the Attorney-General against a ruling made by the adjudicator of the Small Claims Tribunal on the 12th March 1984 when she dismissed six claims for arrears of property rates on the grounds that the forms of claim were not signed by the claimant i.e. the Attorney-General personally pursuant to Section 12(2) of the Small Claims Tribunal Ordinance Cap. 338. None of the defendants appeared at the hearing. Section 12 provides:-

12.(1)    A proceeding in the tribunal shall be commenced by filing a claim with the registrar.

(2)    Subject to subsection (3), a claim shall be in writing in the prescribed form, in either the English or Chinese language, and shall be signed by the claimant.

(3)    The registrar may permit a claim to be made orally and shall cause it to be reduced to writing and shall supply a copy thereof to the claimant and, if the registrar thinks it appropriate, a translation thereof if it is reduced to writing in the English language.

(4)    In any joint or representative claim -

2. At the hearing on the 26th January 1984 a Senior Clerical Officer of the Treasury produced an authorisation signed by the former Attorney-General dated the 22nd July 1982 which enabled him to appear as his representative before the Tribunal. However, the adjudicator held that this document only provided authority for a right of audience under Section 19(1)(d) of the Ordinance. She adjourned the hearing until the 9th February 1984 for the Attorney-General to make submissions. On the adjourned hearing the same Officer produced an authorisation dated the 7th February 1984 signed by the Attorney-General which gave him authority to sign forms of claim under Section 12(2).

3. The adjudicator after considering a written submission from the Attorney-General decided that Section 12(2) is mandatory with the result that the Attorney-General cannot delegate the signing of his name to another. In her ruling at page 5 the adjudicator said:-

".......... While a function or power may not be personal to a minister, his signature is. Although an act or a decision may be entrusted to an official and that act of decision treated as that of the minister, the same could not be said of a signature, which cannot be entrusted and which cannot be said to be that of the minister if it in fact is not. It would be different had the Attorney General entrusted the placing of a facsimile of his signature on the prescribed form to another. The act of placing the facsimile of the Attorney General's signature on the prescribed form by that person might be regarded as the act of the Attorney General himself on the principle of agency or on the principle of delegation. Also, had the person who signed the prescribed form been acting as Attorney General at the time he signed those claims, his signature on the prescribed form would, of course, be valid, because he would then be the claimant himself and his signature would be that of the claimant. ".

This passage is inconsistent for while the adjudicator says that the Attorney-General's signature cannot be entrusted to another she goes on to say that the placing of a facsimile signature could be delegated.

4. The ordinary rule with regard to agency as set out in Halsbury's Laws of England (4th ed.) Vol. I is that whatever a person has power to do himself he may do by means of an agent. Exceptions are provided where a transaction is required by statute to be evidenced by the signature of the principal himself and where the competency to do the act arises by virtue of the holding of some public office or by virtue of some power, authority or duty of a personal nature and requiring skill or discretion for its exercise, or where a statute imposes on a person a duty which he is not free to delegate.

5. Mr. Strawbridge who appeared for the Attorney-General referred to In re Whitley Partners Limited (1886) 32 Ch. D. 337 where:-

In the same case at page 340 Bowen L.J. said :-

"         As regards the question of law, it is contended by the Appellant that it is not sufficient for a man to sign the memorandum of association by an agent, but that he must sign it himself. In every case where an Act requires a signature it is a pure question of construction on the terms of the particular Act whether its words are satisfied by signature by an agent. In some cases on some Acts the Courts have come to the conclusion that personal signature was required. In other cases on other Acts they have held that signature by an agent was sufficient. The law on the subject is thus summed up by Blackburn, J., in Reg. v. Justices of Kent (Law Rep. 8 Q.B. 305, 307): "No doubt at common law, where a person authorizes another to sign for him, the signature of the person so signing is the signature of the person authorizing it; nevertheless there may be cases in which a statute may require personal signature." Quain, J., then says, "We ought not to restrict the common law rule, qui facit per alium facit per se, unless the statute makes a personal signature indispensable."..... ".

6. In order to determine whether the Attorney-General is required personally to sign the forms of claim depends on the construction of the Ordinance. Whilst Section 12(2) states that the form must be signed by the claimant, it does not set out the mode of signature nor does it take into account the ease of a person who is unable through infirmity to write his signature or make a mark. Further by virtue of subsection 3 the registrar may permit a claim to be made orally. The form itself clearly states that the signatory signed for the Attorney-General.

7. Parker L.J. Had this to say in L.C.C. v. Agricultural Food Products Ltd. (1955) 2 O.B. 218 at page 226:

".......... It is said that the notice to quit should bear the personal signature of the valuer, who in fact will have signed the tenancy agreement, for only thus will a tenant be able to know that the notice is valid. The valuer who has signed the agreement may, however, no longer occupy that position, as indeed was the case here. The emphasis is, I think, rather on the office or department of valuer and agent than on the man who occupies the office or department. That being so, I see no reason to depart from the common law rule.".

8. There is nothing in the Ordinance that warrants the adjudicator's conclusion that the personal signature of the Attorney-General is necessary. The personality of the Attorney-General is irrelevant. Provided that the signatory is duly authorised the common law rule should apply.

9. The earlier authority given by the Attorney-General on the 22nd July 1982 to appear as his representative was in my opinion sufficient for the purpose, but in any event the authority of the 7th February 1984 amounted to a ratification. In my judgment the Officer of the Treasury was authorised to sign the form of claim as agent on behalf of the Attorney-General.

10. The appeals are therefore allowed, and judgment will be entered for the amounts claimed.

Representation:

Mr. N.L. Strawbridge and Mr. P.H. Hamlin (Legal Department) for Appellant.

Respondents absent.