Yung Siu Ying v. Hong Kong Sailing Federation

HCMP 2395/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2395 OF 2008

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BETWEEN

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Before: Hon Kwan J in Chambers

Date of Hearing: 13 August 2009

Date of Decision: 13 August 2009

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D E C I S I O N

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1.It is rarely necessary for a reasoned decision to be given in a directions hearing or case management hearing. I am doing so because I am against most of the applications sought by the plaintiff and it appears to me these applications are misconceived.

2.The substantive proceedings before the court take the form of an originating summons. The plaintiff seeks the adjudication of the validity of proceedings in the extraordinary general meeting of the defendant held on 5 September 2008 and whether the resolutions defeated or passed at that meeting were properly put to the vote.

3.In support of her application, the plaintiff filed her affirmation in December 2008 and the defendant by its secretary general filed an opposing affirmation in January 2009. Both affirmations went into the substantive disputes between the plaintiff and her camp and the council of the defendant in some detail.

4.I wish to state firmly and clearly that for the purpose of adjudicating on the question in the originating summons, what is already covered in those affirmations is more than sufficient. The court is not concerned with the substantive merits or otherwise of the positions taken by the plaintiff’s camp and by the council on the resolutions proposed by each camp at the EGM.

5.With this, I turn to the directions sought in the two summonses filed by the plaintiff on 4 and 10 August. I will first consider the summons issued first in time.

6.The plaintiff seeks an order for the parties to file their respective lists of documents and for inspection. She has prepared a list of documents dated 6 July 2009 exhibited to her 2^nd affirmation filed on 4 August 2009. Documents in these proceedings have already been disclosed on affidavit. If further documents are proposed to be disclosed, they should be disclosed in a further affidavit to be filed with the leave of the court. I see no reason why it is necessary to disclose documents by a list or to provide for inspection of the documents, whether they have been disclosed on affidavit or otherwise. Paragraphs 1 to 4 of the summons are refused. Paragraph 7 of the summons is likewise refused.

7.I will however give leave to the plaintiff to file and serve an affirmation in reply to the 1^st affirmation of the secretary general. She is the plaintiff and should be given the opportunity of putting in the last word. The plaintiff may produce in that affirmation any further documents that are relevant to these proceedings. She may produce the letter of 9 May 2009 which is an open offer from her solicitors, but the reply of the defendant’s solicitors dated 20 May 2009 should not be produced as it is a sanctioned offer. Under Order 22 rule 25(2) of the Rules of the High Court, the fact that a sanctioned offer has been made must not be communicated to the trial judge until all questions of 1iability have been decided. I would warn the plaintiff against producing irrelevant documents and deposing to irrelevant matters in her affirmation in reply, that would be taken into consideration when a costs order is to be made at the conclusion of the proceedings.

8.The plaintiff seeks to set down the hearing of the originating summons with two days reserved. No cross-examination on affirmations would be allowed. I cannot see how legal arguments and submissions on the evidence filed would take more than a day.

9.In the 2^nd summons, the plaintiff seeks an order that the defendant should give further and better particulars of various matters in the secretary general’s affirmation as per the request for further and better particulars filed by the plaintiff on 10 August 2009. The request for further and better particulars is designed to elicit from the defendant whether the recommendations made in the Coroner’s Court were in writing and whether certain decisions or views of the defendant’s council were in writing. If they were in writing, the plaintiff seeks a further order that the defendant is to give discovery and inspection of these documents.

10.This application is totally misconceived. It is not necessary to deal with it by the elaborate submissions in opposition made by the defendant’s counsel. It is plain as a pikestaff that it should be refused. Even if it were proper to seek further and better particulars of an affirmation, any discovery or inspection of documents would only be ordered if the court is satisfied this is necessary either for disposing fairly of the cause or matter or for saving costs. This overriding requirement is plainly not satisfied. The entirety of the 2^nd summons is dismissed.

11.The defendant has also a summons for leave to adduce evidence in a supplemental affirmation of the secretary general which was filed on 5 August 2009. This affirmation is to produce the minutes of the annual general meeting in December 2007, the draft minutes of the annual general meeting in December 2008and the president’s reports distributed at those annual general meetings. The relevance of these documents is not readily apparent to me. But as the plaintiff is not opposed to admitting the evidence, I will give leave to rely on this affirmation which was already filed.

12.I make these directions for the conduct of the originating summons:

(1) leave to the defendant to rely on the supplemental affirmation of Chen Kit Yuk filed on 5 August 2009;

(2) the letter of the defendant’s solicitors dated 20 May 2009 exhibited to the 2^nd affirmation of the plaintiff filed on 4 August 2009 as part of exhibit YSY-12 be removed from the court file;

(3) leave to the plaintiff to file and serve an affirmation in reply to the 1^st affirmation and the supplemental affirmation of Chen Kit Yuk within 14 days hereof, if so advised;

(4) no further affirmation be filed without leave;

(5) there be no cross-examination on any of the affirmations filed;

(6) the parties are to obtain English translation of essential documents or essential parts of documents exhibited in Chinese to their respective affirmations within28 days hereof or within28 days of the filing of such affirmation, whichever is the later, and submit the translation to the Court Language Office for certification;

(7) upon confirmation paragraphs (2), (3) and (6) hereof have been complied with, leave to set down the originating summons for substantive argument with one day reserved, in consultation with counsel’s diaries; if there is difficulty in fixing dates in consultation with diaries, leave to seek further directions by letter;

(8) the plaintiff is to lodge a hearing bundle 10 days before the hearing;

(9) the plaintiff is to serve a skeleton submission and authorities 7 days before the hearing; and

(10) the defendant is to serve a skeleton submission and authorities 3 clear days before the hearing.

13.I order half of the costs of the hearing today be paid by the plaintiff to the defendant in any event, to reflect the dismissal of a large number of directions sought in the plaintiff’s two summonses. The other 50% of the costs of today’s hearing is to be in the cause of the originating summons.

Mr Alexander H F Cheung, instructed by Messrs Lau, Chan & Ko, for the Plaintiff

Mr Wallace Cheung, instructed by Messrs Winnie P H Lun & Associates, for the Defendant