Mary Jane Dandoy Dela Torre v. Lam Ka Wai Grace

DCEC 147/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 147 OF 2012

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IN THE MATTER OF AN APPLICATION BETWEEN

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D E C I S I O N

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1.The applicant (“DT”) claimed against the respondent (“Lam”) for injury allegedly due to an accident arising in and out of her employment as domestic helper at Lam’s apartment in April 2011. The claim was tried and this court handed down the judgment on 29 January 2013 (“the Judgment”). I rejected DT’s claim on the facts and dismissed her application.

2.Following that event, I made a nisi order that except for Lam’s costs of obtaining and adducing surveillance evidence, DT shall pay the costs of the application to Lam, including any costs reserved.  Costs shall be taxed, if not agreed, with certificate for counsel.  In the absence of application within 14 days to vary, the costs order shall become absolute.

3.By summons dated 15 February 2013, DT applies to vary the nisi costs order.  The application was just out of time.  By her affidavit in support and oral submission, DT suggested that she had no legal advisors to guide her in the legal proceedings; and more importantly had no financial means to satisfy the costs order.

4.Costs is a matter of discretion of the court.  O.62, r.3(2) of the Rules of the District Court, Cap 336 provides the starting point, namely, that the court shall order costs of any proceedings (other than interlocutory proceedings) to follow the event except when it appears to the court that some other order ought to be made in the circumstances of the case.  The nisi costs order made in the present case is in line with that.

5.R.5 of the same Order of the rules provides for the special matters that should be taken into account in exercising the discretion as to costs.  In the case of DT, she started the litigation with solicitors’ assistance.  It was only upon the refusal of her subsequent application for legal aid when she has become acting in person.  DT took and persisted in undertaking the litigation risk up to the end of the trial.  The result was adverse to her; and the normal costs order follows.  Her lack of financial means, though understandable, is no circumstance justifying departure from the starting point in the exercise of discretion as to costs.

6.DT’s application out of time to vary the nisi costs order is therefore dismissed with costs to Lam, to be taxed, if not agreed.

The applicant, in person

Miss YAN Lai Yu Janice of Messrs Simon C W Yung & Co for the respondent