Lo Tim v. Hang Lee Construction Co and Another

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CIVIL APPEAL NO.37 OF 1973

(On appeal from O.J. 1332/73)

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Coram: Huggins & McMullin, JJ.

Date of Judgment: 29th November 1973

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JUDGMENT

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1. This is an appeal against a decision of Trainor, J. in chambers dismissing an appeal against the order of Mr. Registrar Mayo whereby he dismissed the action as being res judicata.

2. It is a most unfortunate case, in which the Appellant has throughout been appearing in person, and much of the difficulty has resulted from the fact that he is blundering in deep water. He obviously has not understood a great deal of what has gone on in these courts. In the present action he has sued for damages for breach of contract. The summons which has led to this appeal was taken out on 26th June and was for an order dismissing the action on the ground that the matter was res judicata and that it was frivolous and vexatious and an abuse of the process of the court. The summons was returnable on 4th July and upon that date it was adjourned to a date to be fixed for argument. Leave was given to the Defendants to file an affidavit in reply to the Plaintiff's affidavit. That order was obviously misunderstood by the Appellant. On 26th July he took out a summons asking for judgment in default. In that summons he referred to the order of 4th July and suggested that that order required the Defendants to serve a defence. The order of 4th July ordered no such thing. The Appellant's summons was in fact stood over until the summons of 26th June had been heard. As I have indicated, when that summons came on for hearing before Mr. Registrar Mayo he dismissed the action.

3. The allegation of res judicata is based on a previous action brought by this Appellant against the same parties on 6th March 1972. That action was tried and judgment was given against the Appellant. He appealed to this court and we spent a great deal of time endeavouring to sort out the matters in issue and explaining them to the Appellant. There can be no doubt that if one looks solely at the Statement of Claim in these two actions there do appear to be differences. When the previous action was before this court we pointed out that the writ and the Statement of Claim did not correctly set out what the Appellant had been trying to allege and we said that that had obviously been appreciated by the Defendants. In fact the case had been fought before the learned trial judge on the basis that it was not a claim inter alia for wages but on the basis that it was a claim for damages for breach of contract. In fact I think it is fair to say that we treated the Statement of Claim in Action No. 551 of 1972 as though it had been in precisely the terms which now appear in the present action. Mr. Registrar Mayo was satisfied that the issues which were before the court and which were tried in the previous action were substantially the same as those which are raised by the Statement of Claim in the present action. Trainor, J. came to the same conclusion. For my part I can see no distinction between the issues which would have to be decided if this case went to trial and those which have already been discussed at length in Action No. 551 of 1972.

4. I have left until this moment a preliminary point which is taken on behalf of the Respondents, namely that this appeal is incompetent because Notice was not given within the time prescribed by the Rules of Court. The order of Trainor, J. was made on 17th September, the Notice of Appeal was dated 22nd October and was served on the same day. Under O.59 r.4 the time for appealing against an interlocutory order is 14 days and it is conceded by the Appellant that the Notice was not served until long after 14 days had expired. Counsel has drawn our attention to Hunt v. Allied Bakeries Limited 1956 3 All E.R. 513 where it was held that an order striking out a pleading, such as we have in this case, is an interlocutory order. Although like Buckley, L.J. I think that logic would require this form of order not to be an interlocutory order, nevertheless I would not depart from the principle which has now been well established for very many years that this type of order is an interlocutory order. The Appellant says that he was told in the court office that he had 42 days in which to file his appeal. For the purposes of this judgment I am prepared to accept that he was told that, but on what the Appellant himself has told us he was not so misled until the 14 days had already expired. Therefore, it seems to me that the preliminary point was in any event a good one, but I was reluctant - the Appellant being a party in person - to dismiss the appeal on what is, in a sense, a technical point.

5. As I say, in my view, the appeal is incompetent but even on its merits it must fail. Some suggestion has been made that the learned Registrar was taking sides in this matter. It may well have seemed so to the Appellant but for my part I am absolutely satisfied that there is no justification whatsoever for the allegation which was made.

McMullin, J.:

6. I only wish to add that I am in full agreement with the judgment which has been delivered and I have nothing that I think I can usefully add to what has been said.

29th November 1973.