Chan Yiu Fai Jacky v. Cheese Pizza Asia Ltd t/a Cheese Pizza

DCEC1443/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES' COMPENSATION CASE NO. 1443 OF 2010

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BETWEEN

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Before: H H Judge Chow in Chambers (Open to the public)

Date of Hearing: 15 April 2011

Date of Decision: 15 April 2011

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D E C I S I O N

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1.This court made an order dated 17 January 2011 on an ex parte application by the Applicant. The order specifies a numbers of things the Respondent is to comply with:

(1)   The Respondent is to file and serve on the Applicant an answer within 21 days from the date hereof;

(2)   The Respondent is to file and serve on the Applicant for the purpose of section 11 a list of earnings of the Applicant for the 12-month period prior to the accident or such lesser period of the employment with the Respondent or the Applicant’s employer within 21 days from the date hereof;

(3)   The parties are to file and serve a list of documents within 21 days from the date hereof and within 7 days thereafter inspection of documents;

(4)   Parties to make joint written application within 49 days from the date hereof;

(5)   Respondent to file mediation certificate within 14 days from the date hereof.

The order, which was a sealed one, was served on the Respondent by way of registered post made by the Applicant on 15 February 2011. Thus the Respondent received the registered letter some time after 15 February 2011. 

2.When the Applicant mailed the sealed order on 15 February 2011, the time limits specified in the order made on 17 January 2011 had already expired.  These are the time limits of 21 days specified under item (1) of the order, 21 days under item (2),  21 days and 7 days under item (3), and 14 days under item (6) of the said order.  All these time limits had already expired when the  Respondent received the sealed copy of the order.  So the Respondent simply did not have any time to comply with the matters specified in the said order.  But according to the order, the Respondent was under a legal obligation to comply with the matters set out in the said order.  It could not do so because of late service of the order.  An order that cannot be complied with is a bad order, so it must be set aside.  I accordingly set aside the order made on 17 January 2011.  So I make an order in terms of paragraph 1 of the summons.

3.Regarding paragraph 2 of the summons, I cannot see why the costs of and incidental to the Applicant’s ex parte application filed on 14 January and the order made on January 17, 2011 be to the Respondent.  The proper order should be and which is the one I make now: there be no order as to costs of the Applicant’s ex parte application leading to the making of the order, but there be costs incidental to the order because pursuant to the order the Respondent, for example, made search on the court file, etc., etc.  Such costs should be borne by the Applicant because the order causes the Respondent to make expenses although this may not be involving a substantial amount of money.  So the Applicant is to pay costs incidental to the order to the Respondent. 

4.Regarding item 3 of the summons, I make an order in terms of paragraphs 1, 2, 3, 4, 5 of the summons.

5.Now, regarding item 1 of the order made by Judge Lok, which is judgment on liability is entered for the Applicant against the Respondent in an action herein with compensation to be assessed, I refer to the letter, 25 February 2001, issued by the Applicant’s legal representatives.  The letter says, under paragraph 2, “We write to inform the honourable court that the respondent nor its legal representative has filed and served an answer to the applicant’s application herein.”  Pursuant to paragraph 5 of the said order, the applicant seeks the following directions from this court:

(1)   Judgment on liability is entered for the Applicant against the Respondent in an action herein with compensation to be assessed.

Because the order made on 17 January 2011 is bad and so it follows that the order made by Judge Lok regarding 1, 2, 3, 4, 6 and 7 are also bad, so I have to set them aside.

6.Regarding sub-paragraph (6) of paragraph 3 of the summons, I made an order that paragraph 1 of Judge Lok’s order is varied to read as follows: there is no order as to the costs of the Applicant’s ex parte application by the letter dated 25 February 2011 up to the making of the order; the costs incidental to the order dated 11 March 2011 be to the Respondent, if any. 

(Discussion re costs)

7.Costs of this summons application be paid by the Applicant to the Respondent, to be taxed, if not agreed.

Mr T Ho of Huen & Partners, for the Applicant

Miss Y S Chou of So, Lung & Associates, for the Respondent