Hui Kee Chun v. The Privacy Commissioner for Personal Data

Case No.HCA 1980/2006

Court

High Court CFI

Date16 Jan 2009

Judge—

Case Document

100%Judiciary

HCA 1980/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1980 OF 2006

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BETWEEN
	Hui Kee Chun	Plaintiff
	and
	The Privacy Commissioner for Personal Data	Defendant

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Coram : Before Master Levy in Chambers

Date of Hearing : 8 January 2009

Date of Handing Down Reasons for Decision : 16 January 2009

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Reasons for Decision on the Review

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INTRODUCTION

1.The Plaintiff, Mr. Hui, in this review of taxation is the paying party (“the PP”), and the Defendant, the receiving party (“the RP”). The RP was awarded costs as a result of its success in striking out the PP’s Statement of Claim both before the Master, and before Deputy Judge Louis Chan on appeal by the PP against the Master’s decision. The full background of this claim can be found in the judgment of the learned Deputy Judge handed down on 30^th November 2007, and I will not repeat here. The PP’s grounds of Review are in the 6^th Affidavit of Hui Kee Chun filed on 8 August 2008.

2.In the grounds of objections, the PP applied to review both items that previously raised no objections at the taxation hearing as well as items that I had taxed and ruled upon.

3.Regarding items that had not previously been objected to, the RP took a preliminary point on lack of jurisdiction.

4.For convenience, I will firstly dispose of this type of objections as it concerns with a jurisdictional matter.

PRELIMINARY ARGUMENT: ITEMS THAT WERE NOT PREVIOUSLY OBJECTED TO

5.The items that fall within this category are, according to the order of the PP’s list are Item Nos. 19-21, 35, 86, 186(b), 187, 196 and 19-21.

6.The gist of PP’s arguments is that under Order 62 rule 33(1) of the Rules of the High Court a taxing master’s power to review is not restricted only to items that have been taxed, but he is completely free to look at all items afresh, whether they have been taxed or not.

7.The RP simply contends that absence a taxing master’s previous adjudication on costs claimed in a bill of costs, or any objections raised by a party liable for payment of costs, there is nothing for a taxing master to review or reconsider under Order 62 rule 33.

Decision

8.The provisions in Order 62 rule 33, in my view, enable a party dissatisfied with a ruling or decision made by a taxing master to review his or her decision.

9.A party’s costs are required to be taxed only when the costs claimed by a party entitled to costs are being disputed. Hence, when a party liable for costs does not dispute any items in a bill of costs, the taxation process is simply not engaged. In the instant proceedings, the PP was given adequate opportunity to raise objections to any items he disputed, and he had indeed fully utilized such an opportunity to raise objections by filing a detailed list of objections to the Bill.

10.I think the instant review is different to a situation where a party has, through inadvertence has omitted to include in a list of objections to some items in a bill. Such kind of omission could easily be remedied by the party asking for leave to raise objections during the taxation proceedings. In this Review, the PP is asking me to review on items which he had not objected either in writing or otherwise at the taxation hearing, and more particularly, I had not previously taxed any of those items mentioned in paragraph 5 above.

11.For these reasons, I am clearly of the view that items that I have not previously taxed do not fall within the ambit of Order 62 rule 33, and I accordingly dismiss the application for review in respect of these items.

Decision on items that were taxed

12.I set out below by way of a table the reasons for decision in respect of each items of objections in accordance with the order set out in the PP’s list of objections (and the items covered by the preliminary arguments are in bold type for clarity).

Objection No.	Item No.	Nature & Ground of Objections	Decision	Reasons for Decision
1	Fee Earners (b) Mr. Brian Gregory Baillie (“BB”), $3,300 per hour	Simple work. Case could be handled by solicitor (Ms. Ifong Chan(“IC”) with less experience and skill level rather than partner. Also, BB’s service was not appropriate since he did not read Chinese and would not have been able to understand the Chinese contents in the proceedings. Throughout the proceedings, not of Defendant work on allegations had been accepted during Hearing. Master Yu struck out my claim without providing details of reasons. Deputy Judge Chan struck out my claim with 2 pieces of documents not provided by the Defendant or his solicitors.	Refused	BB is the case handler, and I do not agree with the PP that this case is simple. The fact that he did not read Chinese did not detract my view that it was proper and necessary for a solicitor of BB’s seniority to handle this case. Further, I also do not accept PP’s submission that the fact that the court has not accepted all the submissions BB made at the hearing should be a reason to reduce the hourly rate to $2,000 as PP proposed. I do not think that $3,300 which I allowed is excessive in light of the nature of the case.
2	19-21	Exhibit KML-1 not a true copy of Defendant’s letter dated 16 August 2006. KML-2 & KML-3 are irrelevant to and unnecessary for the proceedings.		(See Preliminary Arguments).
3	35	Defendant requested a 3-minute call-over hearing.		(See Preliminary Arguments)
4	86	Defendant requested a 3-minute hearing for direction to restore strike out Summons.		(See Preliminary Arguments)
5	130	Case could be handled by solicitor with less experience and skill.	Refused	This was BB’s actual attendance for the striking-out application before the Master. I repeat the reasons in Item 1 above.
6	170	Case could be handled by solicitor with less experience and skill.	Refused	Same reasons as above.
7	(A)(A)1-(A)3	Work could be handled by solicitor with less experience and skill. O.62 r.8, RHC sought.	Refused	The items in this objection relate to the attendance on client. At the taxation hearing, I had examined each and every single letters and attendance notes produced by the RP. For the attendance that I found it simple enough to be attended to by a more junior solicitor, I substituted the fee earner by a more junior solicitor (and the rate was therefore accordingly adjusted); and whereas the time claimed was excessive, I had also reduced the time accordingly. I reject the PP’s ground of objections.
8	(B)(B)1-(B)2.3	Simple case. Work could be handled by solicitor with less experience and skill. O.62 r.8, RHC sought.	Refused	The items in this objection relate to the attendance on other parties. I had conducted the same exercise similar to those in items (A)(A)1-(A)3 above. For the same reasons above, I also reject the PP’s grounds of review.
9	(C)1.4	Provided true copy of Defendant’s letter dated 16 August 2006. O.62 r.7 & r.8, RHC sought.	Refused	This is BB’s time spent in perusing PP’s affidavit in opposition to the RP’s striking out summons. The PP’s objection on the ground of RP’s omission to include a true copy of the enforcement notice to the letter dated 16.8.2006 exhibited in the affirmation in support of the striking out summons, in my view, simple cannot be accepted as this has no bearing in a consideration of the reasonableness of the claimed by BB to peruse the document.
10	(C)1.8	Simple work on Summons for Directions. My 3^rd Affidavit repeats much content in 1^st and 2^nd Affidavit. Exhibits were duplicate of Defendant’s own information. BB did not read Chinese.	Refused	One of the grounds of objection is on the ground of duplication with the contents of the PP’s previous affidavits. When taxing off 2 hours from the original time claimed, I had taken into account of the fact that BB had read other affidavits and would have been by that stage much more familiar with the case. As to the other ground that BB did not read Chinese, and his rate should be adjusted downwards, I find that it is simply a repetition of the previous arguments.
11	(C)2.3	1^st Affirmation improperly omitted the Enforcement Notice in Defendant’s letter. Statements on judicial review claimed without reasonable basis. Defendant knowingly attempted to deceive and mislead the court with said statements and breached Solicitors’ Guide Chapter 10.01 & 10.03 on “Duty to court” and Para. 130, 132 & 133 of the Bar’s “Conduct at Court”. O.62 r.7 & r.8, RHC sought. Also duplicated costs with “Attendances on clients” in item (A).	Refused	I reject PP’s grounds in their entirety. I have taxed off 1 hour and only allowed 3 hours in drafting the affirmation. In allowing the 3 hours, I have taken into account of the fact that no separate time was claimed for reading and collating, which work was necessary for the preparation of the affirmation.
12	(C)2.6	Enforcement Notice referred. Statements on judicial review claimed without reasonable basis. Defendant knowingly attempted to deceive and mislead the court with said statements and breached Solicitors’ Guide Chapter 10.01 & 10.03 on “Duty to court” and Para. 130, 132 & 133 of the Bar’s “Conduct at Court”. O.62 r.7 & r.8, RHC sought. Also duplicated costs with “Attendances on clients” in item (A).	Partially Allowed	PP relies on the same ground of objections as in item No. (C)2.3 above. I also reject PP’s arguments. After looking at the document again, I come to the view that the affirmation is rather factual, and in view of the fact that BB was already quite familiar with the case by that stage, I therefore review this item by further taxing off 15 minutes, and only allow 1 hour for this item.
13	(C)2.9	Collateral attack, re-litigation, and by passing judicial review claimed without reasonable basis. Defendant knowingly attempted to deceive and mislead the court with said statements and breached Solicitors' Guide Chapter 10.01 & 10.03 on “Duty to court” and Para. 130, 132 & 133 of the Bar's “Conduct at Court”. O.62 r.7 & r.8, RHC sought. Also duplicated costs with “Attendances on clients” in item (A).	Partially Allowed	Similarly, I reject PP’s grounds of review. For the same reasons above, I review this item by further taxing off a further 30 minutes. Hence, the total time I allow is 1 hour.
14	(D)1	Research on general law should not be allowed. All of the cases and allegations in the work were rejected by Deputy Judge Chan. Cases used referred to court proceedings thus not comparable and applicable to AAB's decision of administrative nature and not a Court process. Allegations on collateral attack, re-litigation, and by passing judicial review claimed were all rejected by Deputy Judge Chan. Attempted to mislead Court that Defendant was a “Public Official”. Defendant breached Solicitors’ Guide Chapter 10.01 & 10.03 on “Duty to court” and Para. 130, 132, 133 & 136 of the Bar’s “Conduct at Court”. O.62 r.7 & r.8, RHC sought.	Refused	The grounds of objection are in my view invalid, and I reject them. Although the Deputy High Court Judge has not accepted all the grounds and submissions the RP relied on in reaching his decision to strike out the Statement of Claim, I am of the view that this is not sufficient to disallow the RP’s costs. I have however told the PP that should he take the view that the RP has wasted costs by the way the case was conducted by the legal advisers, he could consider making a “wasted costs” application.
15	(D)4	Work done merely to restore hearing on the strike out summons. Duplicated work. O.62 r.8, RHC sought.	Refused	The summons in this item is not an ordinary restoration of a hearing. By that stage, a lot of affidavit evidence has been filed. I have reconsidered the work done by IC, and am of the view that the 1 hour I have allowed is reasonable in the circumstances.
16	(D)5	Same as indicated in above items. O.62 r.7 & r.8, RHC sought. Also work duplicated. Proposed:(1) Reviewing files (10 minutes – IC)(2) Drafting indices (10 minutes – IC)(3) Sorting documents (10 minutes – LC)(4) Perusing cases and drafting submissions and authorities (10 minutes – IC)(5) (skipped)(6) Perusing Plaintiff’s Submissions (60 minutes – BB)	Partially Allowed	I reject the ground of objection on the basis of a breach of O.62 rr.s 7 & 8. Apart from sub-item (5) which is not the subject matter of review, I have reconsidered each of the sub-items. I have allowed the review of the following sub-items:D5(1): I allow the review in full by taxing off this item entirely as both solicitors, be it BB or IC, should have been familiar with the case. It is not proper and necessary to allow any costs for reviewing files in the circumstances;D5(3): I allow the review as this set of costs should have been included in the charge allowed for $3 per page for photocopying.
17	(D)6	Same as indicated in above items. O.62 r.7 & r.8, RHC sought. Also work duplicated. Proposed:(1) (skipped)(2) (skipped)(3) Sorting documents (10 minutes – LC)(4) Perusing cases and drafting submissions and authorities (10 minutes – IC)(5) (skipped)(6) Perusing Plaintiff’s submissions (30 minutes – IC)	PartiallyAllowed	Similar to the above, I reject the ground of objection on the basis of a breach of O.62 rrs. 7 & 8. Apart from sub-items (1), (2) and (5), which are not the subject-matter of the review, I have also reconsidered each of the sub-items. I allow the review in respect of sub-item (3) for the same reason as sub-item (3) of Item (D)5 above. The review on sub-items (4) and (6) is dismissed.
18	(D)7	Supervising and overseeing proceedings were related to coaching and management of staff which was duplicated work (2 persons doing the same thing, that is, 1 person doing, 1 person supervising).	Refused	I do not accept PP’s submission that the claim for general care and conduct by its nature is duplicated. The general practice in taxation is to roughly allow 5 minutes for one month for the duration of the proceedings. In this case, I have only allowed about 2 minutes for one month. I do not regard the amount I have allowed excessive having had regard to the nature of the case, and the participation of a junior solicitor.
19	186(a)	Same as indicated in above items. Much work unnecessary as a result. O.62 r.7 & r.8, RHC sought. Proposed:a. Drafting Bill of Costs (2 hours) $3,200.00	Refused	I reject the ground on O.62 rrs. 7 & 8. This is ins respect of the reasonable costs of in drafting the Bill. The ground of review is totally irrelevant.
	186(b)	b. Mechanical preparation of Bill (20 pages) $1,000.00		(See Preliminary Arguments)
20	187	Same as indicated in above items. Much work unnecessary as a result. O. 62 r.7 & r. 8, RHC sought.		(See Preliminary Arguments)
21	196	Same as indicated in above items. Much work unnecessary as a result. O. 62 r. 7 & r. 8, RHC sought.		(See Preliminary Arguments)
22	204	Same as indicated in above items. Much work unnecessary as a result. O.62 r.7 & r.8, RHC sought. Proposed:a. Sorting documents for taxation hearing (30 minutes – LCD) $800.00b. Attending taxation hearing (30 minutes – LCD) $800.00c. Calculating taxed amounts (30 minutes – LCD) $800.00	Refused	I reject PP’s arguments on the same ground of objections based on O.62 rrs. 7 & 8.
23	19-21	Same as indicated in above items. Much work unnecessary as a result. O62 r.7 & r. 8, RHC sought. ProposedItem 19-21 (20 pages x 3) $60.00 x 3		(See Preliminary Arguments)
	110-112117-119124-126149-151156-158163-165	Item 110-112 (40 pages x 3) $120.00 x 3Item 117-119 (20 pages x 3) $60.00 x 3Item 124-126 (40 pages x 3) $120.00 x 3Item 149-151 (40 pages x 3) $120.00 x 3Item 156-158 (20 pages x 3) $80.00 x 3Item 163-165 (40 pages x 3) $120.00 x 3	Refused	Likewise, I also reject the ground of objections based on O.62 rrs. 7 & 8. This ground is totally irrelevant to the photocopying charges claimed in the Bill.

COSTS

13.The net result shows that PP has substantially failed in the Review. Hence, I ordered PP to pay the costs of the Review, including costs reserved, and assessed the costs at $8,000.