譚耀煇 v. Aberdeen Marina Holdings Ltd

cacv 167/2005

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 167 of 2005

(on appeal from DCEC NO. 1038 of 2004)

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BETWEEN

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Before : Hon Le Pichon, Tang JJA and Suffiad J in Court

Date of Hearing: 27 October 2005

Date of Judgment: 27 October 2005

Date of Handing Down Reasons for Judgment: 3 November 2005

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REASONS FOR JUDGMENT

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Hon Le Pichon JA:

1.This was an appeal by the respondent from the costs order made by HH Judge Wong in a contested summons taken out in employment compensation proceedings.  No leave had been obtained either from the District Court or this court for the appeal. The short point before the court is whether leave is required for such an appeal.  At the appeal hearing, the court concluded that leave was required.  The appeal was therefore dismissed.  My reasons appear below.

2.Section 23 of the Employees’ Compensation Ordinance, Cap. 282 (“the ECO”) provides as follows:

“	(1)	Subject to the provisions of this section and of section 13, an appeal shall lie to the Court of Appeal from any order of the Court.
	(2)	Except with the leave of the Court or of the Court of Appeal (which shall not be granted unless in the opinion of the Court of Appeal some substantial question of law is involved in the appeal) no appeal shall lie if the amount in dispute is less than $1000.”
	(emphasis added)

“Court” is defined in section 3(a) as meaning of “in relation to any proceedings for the recovery of compensation in or required to be in the District Court, the District Court”. 

3.Mrs Chan who appeared for the respondent relied on section 23 and submitted that an appeal lies as of right from “any order of the Court” which, in the context, must mean the District Court exercising jurisdiction under the ECO provided the amount in dispute is over $1,000.  It was said that the intention of the legislature behind section 23 of the ECO was to provide a process for getting employee compensation issues resolved simply and expeditiously.

4.However, it is provided in section 14 of the High Court Ordinance, Cap. 4 that:

“	(3)	No appeal shall lie
		…
		(e)	without the leave of the court or tribunal in question or of the Court of Appeal, from an order of the Court of First Instance or any other court or tribunal made with the consent of the parties or relating only to costs which are by law left to the discretion of the court or tribunal;”  (emphasis supplied)

The term “any other court” must include any court vested with jurisdiction to deal with employee compensation claims.  There is therefore an apparent conflict between this provision and section 23 of the ECO.  If the respondent be right, “any other court” in section 14(3)(e) will have to be read as excluding the court vested with jurisdiction for employee compensation claims.  But there is nothing in the High Court Ordinance itself to warrant such a construction.

5.It is common ground that there is no direct authority on the point.  Although the inconsistency was recognised by Kempster JA in Wong Sing Fung v Fung Ming Stainless Engineering Co Ltd (CA 123/87) [1987] 69 HKCU 1; 1987 HKCU Lexis 63, it was left undetermined, the court accepting that that was a proper case in which to grant leave to appeal if it were necessary and treated the hearing as the hearing of the appeal. 

6.Mr Wong who appeared for the applicant submitted that the court should adopt the approach of Litton JA in A Solicitor v Law Society of Hong Kong [1995] 1 HKC 834.  The issue in that case was whether this court had jurisdiction to entertain an appeal on costs made under section 13(1) of the Legal Practitioners Ordinance where no leave had been granted under section 14 of the High Court Ordinance.  Section 13(1) reads:

“Subject to section 12(6), an appeal against any order made by a Solicitors Disciplinary Tribunal shall lie to the Court of Appeal and the provisions of Order 59 of the Rules of the High Court (Cap 4 sub. leg. A) shall apply to every such appeal …”

Litton JA concluded that section 13(1) could not be construed so as to override section 14(3)(e) observing (at page 835G-H) that :

“Section 13(1) is not free-standing.  It does not provide a comprehensive code for dealing with appeals from orders of the Solicitors Disciplinary Tribunal; for that one must go to the Supreme Court Ordinance.”

7.Mrs Chan sought to distinguish that decision on the basis that section 23 of the ECO was differently worded and did not incorporate any reference to Order 59 which she submitted imported the ‘leave’ requirement.  But Order 59 does not concern ‘leave’.  Rather, it is section 14 of the High Court Ordinance that deals with the requirement of leave.  To read section 14(3)(e) in the manner suggested by the respondent is unnatural given that there is nothing in either the ECO or the High Court Ordinance that requires such a construction. 

8.It is possible to reconcile the two seemingly conflicting provisions by construing the words “any order of the Court” in section 23 of the ECO as referring to orders made under the substantive provisions of the ECO whether awarding compensation or determining questions of law arising out of the ECO but not costs orders which fall under “the law, rules and practice” of the District Court in or in connection with civil actions in that court which by virtue of the provisions of section 21(1) of the ECO apply to compensation claims.  Section 23(2) supports such a reading.  The words within parenthesis tend to indicate that “any order of the Court” would not include costs orders since a costs order would not involve substantive questions of law but the exercise of the judge’s discretion.

9.Upon the court announcing its conclusion on jurisdiction, Mrs Chan requested the court to treat the application as one for leave.  Leave was refused and my reasons appear below.

10.In the proceedings below, the judge granted the respondent’s application that the applicant attend a medical examination by an orthopaedic expert to be appointed by the respondent, that the respondent be at liberty to adduce that expert medical evidence but awarded the costs of that application to the applicant.  The respondent submitted that the judge had erred in principle because costs should have followed the event.  To put this question in context, it is necessary to consider the circumstances leading to the application in the first place.

11.The applicant sustained a back injury in the course of his employment.  Prior to proceedings being issued and in accordance with the practice direction, the applicant’s solicitor invited the solicitor for the respondent’s insurer for joint instructions to be given to an orthopaedic expert, Dr Johnson Lam, to examine the applicant.  Dr Lam duly did so and provided a report dated 25 March 2004.  It would appear that this was not to the liking of the respondent’s solicitor who asked that the applicant be examined by another orthopaedic expert.  The applicant’s solicitor suggested that clarification be obtained from Dr Lam.  On 13 April 2004, the respondent’s insurer wrote to Dr Lam seeking clarification and received a reply on 20 April 2004.  However that was also not to its liking.  Proceedings were then commenced and the summons in question issued.

12.Paragraph 14 of the respondent’s skeleton submission reads:

“[The respondent’s insurers] were kept in the dark about the 2 domestic accidents when it gave joint instructions to Dr. Lam some 6 months before the DCEC action was commenced.  The purported injuries of the 2 subsequent accidents were also on his back.  Hence, the [respondent] needed to investigate the implications of the new injuries to the injury received in the work accident.”

However, there would not appear to be any basis for that submission in that in the joint instructions sent to Dr Lam dated 22 March 2004, various medical reports had been enclosed for his reference including (1) a medical report prepared by Dr Ngan dated 19 August 2003; (2) a medical report prepared by Dr Mo Pan dated 9 September 2003; and (3) a medical report prepared by Dr Ngai Ho Yin dated 29 October 2003.  The two domestic accidents were referred to in those reports.  It would follow that at the time the joint instructions were given, the respondent knew or ought to have known about those accidents. 

13.It is clear from the transcript that the judge made the order because he did not consider that the applicant would suffer any prejudice by having another medical examination.  Plainly if the applicant had to bear the cost of the contested summons, he would have been prejudiced.  Given that the premise that the respondent had been kept in the dark of the two domestic accidents does not bear scrutiny, the respondent should consider itself fortunate in obtaining the order that it did.  I see no merit in the challenge to the costs order.  That was within the judge’s discretion and no case has been made out that the facts did not warrant such an order.

Hon Tang JA:

14.I agree.

Hon Suffiad J:

15.I agree with the reasons given by Hon Le Pichon JA.

Mr Newman H.W. Wong, instructed by Messrs Tang, Wong & Chow, for the Applicant/Respondent

Ms Dora K.H. Chan, instructed by Messrs Allen Chan & Co., for the Respondent/Appellant