Mohammad Saleem v. Lau Wai Leung t/a Leung Kee Co and Another

DCEC1558/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 1558 OF 2010

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IN THE MATTER OF AN APPLICATION BETWEEN

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Before: Her Honour Judge H C Wong in Chambers (open to the public)

Date of Hearing: 1 June 2012

Date of Decision: 1 June 2012

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D E C I S I O N

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1.The 2nd respondent applies by summons for leave to appeal against my judgment of 22 December 2011. The 2nd respondent is absent today.

2.According to the court record, on 17 May 2012, the 2nd respondent’s former solicitor was granted leave to discharge himself.  The 2nd respondent is, therefore, not legally represented.

3.Mr Chow Wai-lam William is a director of the 2nd respondent.  He lodged with the District Court registry an affirmation deposing that he is and was a director of the 2nd respondent and is authorised by the 2nd respondent to represent the 2nd respondent in these proceedings on 24 May this year.

4.Unfortunately, Mr Chow is absent today.  No one representing the 2nd respondent appeared in court today in spite of the court allowing time for the 2nd respondent to send a representative to court.  In spite of the delay in commencing today’s hearing, no one appeared on behalf of the 2nd respondent.

5.Mr Law, counsel for the applicant, urged upon me to rule on the 2nd respondent’s appeal and to give reasons on merits.

6.After considering the 2nd respondent’s leave application, in spite of its absence today, I shall give my decision on merits of the application below.

7.The sole ground of the 2nd respondent’s appeal set out in its draft notice of appeal is the applicant’s failure to comply with the proviso in section 24(6) of the Employees’ Compensation Ordinance, Cap.282.

8.The section stated that

“An employee shall, before making any claim or application by virtue of this section, against a principal contractor, serve on the principal contractor a notice in writing, stating:

(a) the name and address of the employee;

(b) the name and address of the subcontractor by whom he is employed;

(c) the address of the place of employment of the employee;

(d) the particulars of the accident and the injuries suffered; and

(e) the amount of compensation to be claimed.”

9.The notice, according to section 24, should be served if the applicant intended to join the principal or main contractor in the claim for compensation under the Employees’ Compensation Ordinance.

10.At the trial, the 2nd respondent’s counsel, Miss Lee, failed to raise this important issue in its answer to the application.  There was no reference of such a defence until the closing submission after the close of both the applicant’s and the 2nd respondent’s case on the third day of the trial.  It was only raised by Miss Li during the final submission.  It was opposed by the applicant’s counsel, Mr Law, on the basis that it was not pleaded and it was not raised at any stage during the trial.  Miss Lee then withdrew and abandoned this point.  Consequently, this point was not an issue at the trial.

11.Mr Law referred me today to the case of On Hang Chu v Chan Ngun, CACV 3780/2001.  The judgment of the Court of Appeal is dated 9 April 2003.  Cheung JA held at paragraph 22 of that judgment:

“22. Order 18, rule 7 of the Rules of the District Court requires a party to plead the material facts on which he relies for his defence. Order 18, rule 8 further requires a party to plead matters:

(1) which he alleges makes the claim of the opposite party not maintainable;

(2) which if not specifically pleaded, might take the opposite party by surprise; or

(3) which raises issues of fact not arising out of the preceding pleading.

The exclusion set out in proviso (b) clearly is a matter which fits into every requirement of these rules.

23. This court in Poon Hau Kei v Hsin Chong Construction Co Ltd & Ors [2003] HKLRD 56 had emphasised the importance of putting forward the issues in a case so that the other party became fully aware of the case he had to meet.

24.  Although the judge had briefly dealt with the matter in his judgment, obviously this was a matter which would require evidence to be given before it could be fully determined.”

12.The On Hang Chu appeal was on whether a proviso in section 2(1)(b) of the Employees’ Compensation Ordinance can be relied on in the final submission if the point was not pleaded in the trial.  Section 2 of the ordinance defines who is an employee.

13.The nature of the appeal in the On Hang Chu case is very similar to the present appeal intended by the 2nd respondent.  The Court of Appeal dismissed the appeal in the On Hang Chu case, Cheung JA held at paragraph 34 that:

“Clearly the modern practice of pleading and civil litigation is to require the parties to identify their cases clearly so that the issues can be fully dealt with. Ultimately, it is a matter of fairness.”

14.The 2nd respondent, by raising the proviso in section 24(6)(6) at the final submission stage took the applicant completely by surprise.  The applicant was not able by that stage, even if it was true that no formal written notice had been given, to produce evidence under section 14(3) of the ordinance to show the 2nd respondent or its designated person had knowledge of the accident and can be deemed to have notice, or for the court to determine whether the notice was valid, or, even if there was no notice of the accident, if the application can be received under section 24(8).  This should have been done before the trial commenced and the 2nd respondent failed to do so.

15.Therefore, based on the authority of On Hang Chu and on Order 18, rule 7 and 8 of the District Court Rules, I dismiss the 2nd respondent’s application for leave to appeal.  I do not think the 2nd respondent’s appeal would have any chance of success.

16.As to costs of application and today’s hearing, I order costs to the applicant to be borne by the 2nd respondent in any event, with certificate for counsel.

17.I am not prepared to award costs on an indemnity basis because the 2nd respondent is not present today, on the basis that the 2nd respondent failed to attend court, it is tantamount to abandoning the application, but because the 2nd respondent is acting in person though it is absent today, I will award costs on the ordinary District Court basis, with certificate for counsel.

18.Applicant’s own costs to be taxed in accordance with Legal Aid Regulations.

Mr Dennis Law, instructed by Jal N Karbhari & Co, assigned by Director of Legal Aid, for the applicant

The 2nd respondent was not represented and did not appear