Law Yiu Chan and Another v. Wong Kwok Wai t/a Supper Repairing Co
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DCEC804 / 2007 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION EMPLOYEE COMPENSATION NO. 804 OF 2007 ----------------------
---------------------- Coram: Deputy District Judge William Lam in Court Date of Hearing: 10th June 2008 Date of Handing down of Supplementary Judgment: 11th June 2008 --------------------------------- Supplementary Judgment ------------------------------- 1.In this matter judgment was delivered on the 10th April 2008 and I refer to same. At the time of the original hearing quantum was stated by the parties to be “agreed”. However since the date of the judgment the Applicants now ask for Supplementary Orders, being for: (1) payment of funeral expenses under s.6(5) and Schedule 6 of Cap.282, (2) interest, and (3) certificate for counsel. 2.The Respondent is now unrepresented but defaulted in this hearing. Counsel for the Applicants informs me that when the Summons was served, the Respondent, no longer represented by solicitors, refused to accept service. I am not surprised, therefore, that the Respondent defaulted today. 3.In respect of reimbursement of funeral expenses, s.6(5) makes it mandatory for the employer to pay the same to the Applicants, but the maximum is stated in Schedule 6 on the right column corresponding to s.6(5), which is $35,000. This amount is now asked for by the Applicants who had paid more than twice over. In the circumstances the only proper course for me to take is to order payment by the Respondent to the Applicants in the sum of $35,000. How this amount is to be distributed among the Applicants themselves, if the question should arise, has not been stated to this Court, and I make no specific order of apportionment. As the Applicants are members of the same family it is not envisaged that a dispute will ensue, but in the unlikely event that a dispute should arise, I give leave to the Applicants to return to this Court to seek an appropriate Order in due course should it be necessary. 4.In respect of payment of interest, s.21(3) empowers this Court to make such an order on an entirely discretionary basis, such interest to cover from the date of the accident to the date of judgment. Counsel for the Applicants says that I have the same powers regarding costs in Employees Compensation matters as in any other civil action in the District Court, but it seems to me that the “wider powers” in s.21(1) are overridden by the wording in s.21(3), so that in today’s case an award of costs is limited to the period between the accident and the date of (the original) judgment. In any event, having regard to the whole of the circumstances, I am of the view that it is only proper for me to order interest to be paid by the Respondent to the Applicants on the principal of $588,000 + $35,000 = $623,000 at 6% per annum from the 1st July 2005 being the date of the accident, to the 10th April 2008 being the date of my original judgment. 5.As to a Certificate for Counsel, I recognise that the matter had proceeded to trial, with cross-examination required, but I am not of the view that the facts were so complex that they went beyond the scope of a Solicitor so that Counsel must be instructed, although in many situations instructing solicitors may well decide that briefing Counsel is in the best interest of their clients. In all the circumstances of this case the application for a Certificate for Counsel is declined. 6.The final matter is in respect of the costs of today’s hearing. The facts revealed that the Applicants’ solicitors had tried to arrive at a consensus with the Respondent in order to obviate a formal hearing, but a telephone call and a letter sent to the Respondent’s solicitors on the 11th April 2008 had met with a negative response and no reasons were given as to why. Accordingly the Applicants’ solicitors needed to issue a Summons (for today’s hearing) on the 30th April 2008. This Summons was served to the Respondent’s solicitors on the 5th May 2008, who were still acting for the Respondent. The Applicants’ solicitors followed the matter up with a letter to the Respondent’s solicitors again seeking consent, but to this there was no reply. Finally, on the 30th May 2008 the Respondent’s solicitors sent a notice to the Applicants’ solicitors stating that they no longer represented the Respondent. As stated earlier in this judgment, when the Summons for today was served to the Respondent himself, he refused to accept service. 7.In the above circumstances today’s Application and hearing in court must be held. The Applicants’ solicitors have obviously done all they could reasonably have done in order to avoid incurring today’s hearing and costs therewith associated. Accordingly I award costs of today’s hearing to be paid by the Respondent to the Applicants, to be taxed if not agreed.
Ms Josephine Tjia, instructed by M/s Yip Tse & Tang for the Applicants Respondent: WONG Kwok-wai trading as Super Repairing Co., unrepresented and absent |
Further hearings and rulings under DCEC 804/2007