K. Wah Quarry Co., Ltd v. Wu Kut Tai
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IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO.10 OF 1972 (On appeal from Workmen’s Compensation Case 67/71) ________________________
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________________________ JUDGMENT ________________________ Huggins, J.: 1. This appeal relates to a claim for workmen’s compensation and is against an order of Judge Yang dismissing an application to set aside an award. The circumstances were these. The Applicant claimed as the widow of a deceased workman on behalf of herself and a son. The application, in which she alleged that the Deceased’s earnings had been $1,100 a month, was duly served on the Respondents together with a Form 4 Notice as prescribed by the Workmen’s Compensation (Rules of Court) Rules. That Notice required the Respondents to lodge a written answer within 21 days and continued with these words:
The Respondents did lodge a written answer. That answer admitted liability to pay compensation but contested the amount on the ground that the Deceased’s average wages were alleged to have been $571.75 a month. On 20th October 1971 the case was duly called on for hearing. The Applicant appeared in person but the Respondents did not appear. Judge Collier, who was sitting on that day, had regard to the fact that there was a letter of opposition and that that letter admitted that some compensation was payable and he made an interim award based upon that admission. His notes then read:
On the following day an Interim Certificate of Award was drawn up by the Deputy Registrar and this was served upon the Respondents. Whether or not it was served on the Applicant we do not know. The Certificate set out the interim award and the provisions for payment and also set out an order in these terms:
It is emphasised by counsel before us that that was not strictly in accordance with the order of the learned judge: an adjournment of one month would have taken the date to 20th November. However, in my view nothing turns upon this, because, although the notice served on the Respondents was ambiguous, they appear to have ignored it altogether. 2. On 17th November, which was the date inserted by the Deputy Registrar in the Certificate, the case appears to have been called on – this time before Judge Yang. Neither party appeared. We do not know why the Applicant was not there, but it may well be that the Applicant thought that the case had been adjourned one month to 20th October. The learned judge, for reasons again which we do not know, adjourned the case to 20th November. It may be that he saw that the case had been adjourned “one month” and therefore thought the parties would attend on 20th. What happened on 20th is not entirely clear, because although there were proceedings on that date they were not in open court but in chambers. The Applicant appeared on that day but the Respondents again were absent. Perhaps Judge Yang was not able to hear the case on that day. Anyway, he adjourned it until 22nd, on which date the Applicant called her evidence and a final award was made based upon her evidence of earnings at $1,100 a month. 3. When the application was made to the learned judge to set aside that award it was contended that the Respondents had been misled on two occasions – and that is again the argument which has been addressed to us. First it is said that they were misled by the original notice of hearing. As I have said, the notice is in statutory form. The language is no doubt the language of the law and not every day language, but speaking for myself I cannot see that there is any difficulty in understanding what is there set out. There is a clear statement that the case will be heard on 20th October and I see nothing in that Notice which raises any doubt about there being a hearing on 20th October. Then it is said that there was a misunderstanding of the notice which was given in the Interim Certificate of Award. Indeed, it is, I think, submitted that there was really no notice at all given of the adjournment made on 20th October. I do not think that had that Interim Certificate set out the order in unambiguous terms it could fairly be said that there was no notice of the adjournment as required by the Rules. It cannot be denied that the order as there set out (incorrectly) was ambiguous – it could mean an adjournment to 20th November or it could mean an adjournment to 17th November – but it was amply clear that there was an adjournment and I think it was also amply clear that it was intended to indicate the length of the adjournment. Had the Respondents appeared on one of the two dates, and on the wrong date in fact, then I could fully understand that they had been misled, but they did not appear on either date. Mr. Lloyd, who swore an affidavit on behalf of the Company, says that he was expecting a further notice on the first occasion (after he had received the original notice of application) and that he was further confused by the subsequent notice. 4. The learned judge, on the application to set aside the award, came to the conclusion that whilst the Respondents might have a good defence as to the balance of the compensation claimed the reasons they gave for not appearing were unsatisfactory. Just as I have found no sound reason for saying that there was a misunderstanding which was material, so did the learned District Judge, but he went on to say that the Respondents’ failure to appear in court was not the result of a bona fide mistake on their part. It is this last part of his judgment which I find difficult to accept. The judge said that, on the hearing to set aside, the Respondents adduced “no new evidence”, but said he had considered the affidavit “and Mr. Lloyd’s answers under cross-examination”. There is nothing in the notes of proceedings to show that there was any cross-examination and certainly no record of any answers given. We are told that Mr. Lloyd did not give evidence, and that is consistent with the learned judge’s statement that there was no new evidence. It may be that the learned judge put some questions to Mr. Lloyd not on oath and that there were answers which have not been recorded. However, we can decide this case only on the papers before us and, for my part, I think it was going too far to decide on the evidence that the Respondents did not make a bona fide mistake. There was no real ground for misunderstanding and I do not say that they are not open to severe criticism, but that is a different matter. I have considerable sympathy with the learned District Judge because it is notorious that defendants in proceedings in the District Court commonly do raise defences which they never have any intention of endeavouring to support, then fail to appear when they have been given notice and yet endeavour to say that they were not given notice. However, we are in as good a position as the learned judge to decide in this case whether the actions of the Respondents were bona fide or not and, in my view, the finding that they did not make a bona fide mistake was not justified. 5. The learned judge was clearly inclined to the view – with which I agree – that there is a possible defence on the merits. Clearly the Respondents must be held liable for any costs thrown away but I think this award of the balance of compensation should be set aside and the defence should be heard. McMullin, J.: 6. I have only to add that I am in agreement with the judgment of my Lord which has just been delivered and I don’t think there is anything that I can usefully add to what has been said. 15th September, 1972. Mills-Owens (J.S.M.) for Appellant. Respondent by Chan Wai Hung. | ||||||||||||||