Chor Ki Kwong David v. Lorea Solabarrieta Cheung

HCA 1870/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO. 1870 OF 2012

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REASONS FOR DECISION

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1.The plaintiff commenced the present action against the defendant for breach of confidentiality. In February this year, this court granted an interlocutory injunction against the plaintiff until the trial of this action of further order of the court. This was the plaintiff’s application for joinder of party and amendment of the statement of claim. Before me was also the defendant’s application too for, among other things, joinder of party.

2.The defendant was absent from the hearing.  I allowed the plaintiff to proceed.  At the end of the hearing, I gave the order set out below.  As indicated, I now give my reasons.

BACKGROUND

3.The background of this action and the parties’ dispute were set out in my reasons for the grant of the interlocutory injunction mentioned above: see [2013] 2 HKLRD 95 (“the Decision”).  I shall not repeat here.

4.By summons dated 23 May 2013, the plaintiff applies to join his wife, Chor Gloria Oi Chun (“the Wife”) as the 2^nd plaintiff and the amendment of the statement of claim.  This met with the opposition of the defendant.

5.Nevertheless, the defendant took out a summons dated 28 June 2013 for the following:

(1)   extension of time for filing her affirmation in opposition;

(2)   leave to join the Wife as the 2^nd defendant in the action;

(3)   leave to add other parties as defendants.

6.On 17 July 2013, defendant’s application came before the master.  The master granted the application for (1) above.  He dismissed the application for (2) and (3) above.

7.However, on the same day, the defendant took out her present application for:

(1)   the orders dated 19 October 2012 and 6 February 2013 be set aside;

(2)   meanwhile the order be stayed;

(3)   leave to “add a third party as a defendant”; and the third party is the Wife.

8.The order dated 19 October 2012 was interim injunction granted by Mimmie Chan J; and the one dated 6 February 2013 was the very interlocutory injunction granted by this court.  Both form the subject matter of another previous application by summons taken out by the defendant on 25 April 2013 for, as per summons, “dismissal of action”.  That will actually be heard on 6 January 2014.

THE DEFENDANT’S ABSENCE

9.Much need to be said about the defendant’s conduct of proceedings since the interlocutory injunction and her absence from this hearing.

10.Upon the grant of the interlocutory injunction on 6 February 2013, I gave directions for speedy trial.  For a case that could be ready expediently, speedy trial would help minimise the impact of the dispute on the parties; and as far as the defendant is concerned, the impact of the interlocutory injunction on her.  That was the major consideration of this court then.  The plaintiff was accordingly directed to take out case management summons before this court.  See the Decision at §10.  This the plaintiff did; and hence the case management conference on 25 April 2013.

11.The defendant, who has been represented by solicitors and counsel till then, attended the case management hearing in person.  She has since been acting in person.

12.A few things about that hearing need mention.

13.During that hearing, the plaintiff indicated to the court his intention to join the Wife as the 2^nd plaintiff.  This was premised on the point taken by counsel then appearing for the defendant in resisting the application for interlocutory injunction.  It was argued on behalf of the defendant that the proper plaintiff ought to be the Wife instead of the plaintiff: see the Decision at §§32-34.  This caused the plaintiff to consider joining the Wife as a plaintiff as well.

14.Seeing the sense of that, I directed the plaintiff to take out an application to join the Wife and to amend the statement of claim within 28 days.  Hence the present application by the plaintiff.  Directions as to discovery and witness statements, subject to the close of pleadings, were also given.

15.The position of the defendant then was that whilst she maintained that trial should be speedy, she did not want the following case management conference to be held earlier than early next year.  The reason given was what she contemplated to be possible work engagements.  Reluctantly, this court acceded to the suggested timetable.  This was why the following case management conference was fixed to be held in March 2014.

16.When the defendant took out her summons on 17 July 2013, she was given the date of the present hearing.  The subsequent correspondence revealed that the solicitors for the plaintiff came to understand on 31 July 2013 that the defendant suggested that she might be unable to attend the present hearing. But no application for re-fixing the hearing has been taken by September 2013. The fact was that the defendant wrote unilaterally to the court only on 17 September 2013 seeking adjournment of the present hearing.

17.The defendant’s letter suggested that on the day before, she got a job that required her to go abroad; and that she preferred the hearing to be re-fixed to February 2014.  Once again, the court was struck with the suggestion of the defendant that was hard to reconcile with a genuine intention for speedy resolution. This court gave directions to the defendant (with copies to the solicitors for the plaintiff) on 24 September 2013[1], essentially explaining that unless the parties agreed, application for adjournment had to be taken out properly by way of inter partes summons. Otherwise, the hearing had to proceed as scheduled.

18.The defendant sent another letter on the date before the hearing, reiterating her request for the adjournment.  According to the letter, the defendant was leaving Hong Kong.  The letter was also exhibited to an affirmation filed in the afternoon before the hearing.  There was no formal application for adjournment heard before the present hearing.

19.Even assuming it were a formal application for adjournment, it would have been unmeritorious.  In view of the above history, it was the defendant who left it until after she allegedly got confirmation about the overseas job on 17 September 2013.

20.In any event, the defendant prefer her other engagements to attending the hearing.  Her explanation was that her work schedule was hectic, seasonal and hard to predict and control.  I do not accept that.  It was a matter of her priority and choice; and the defendant chose to defer attending the present hearing to her other engagements in terms of priority.  The choice was already made when she did not make provision for and plan her other engagements around the hearing date, of which has been known since July 2013.

21.In her letter dated 17 September 2013, the defendant explained she had no choice but to accept the date fixed for the hearing when she took out the summons.  In her latest letter, the defendant suggested that the court’s direction on 24 September 2013 gave her too short notice to take out an application for adjournment.  The excuses were unacceptable.

22.Mr Chain described the defendant’s absence as circumstances of her own creation. I agreed.  In line with proper case management and exercise of discretion under O.32, r.5 of the Rules of the High Court (“RHC”), I saw no reason why the hearing should not proceed.

JOINDER OF THE WIFE

23.Pursuant to O.15, r.4 of RHC, a person may be joined where the right to relief is in respect of or arises out of the same transaction or series of transactions; and there is some common question of law or fact.

24.Now the plaintiff applied for leave to do so, which, in my view, is incontrovertible in the circumstances of the case.  The defendant’s opposition was surprising.  As mentioned, one of her grounds against the interlocutory injunction in February, submitted by her then counsel, was that the Wife should have been the plaintiff.  In any event, the opposition was without merits, as the presence of the Wife as a plaintiff satisfies the criteria under O.15, r.4.

25.But the defendant was not opposing that the Wife should at all be a party in this action.  She somehow took the view that the Wife ought to be a defendant like her.  Hence her application to join the Wife as such.

26.The defendant’s application was completely groundless.  The plaintiff has no claim against the Wife; and the Wife could not possibly stand in the same position as the defendant’s as a party to the action.  As the Wife consented to be joined as a plaintiff, there was no basis for the defendant to insist that she be joined as a defendant.

27.The defendant’s application to join the Wife as defendant was also objectionable for another reason.  The defendant’s similar application by summons dated 28 June 2013 was already dismissed by the master on 17 July 2013.  She simply took out similar application on the same date.  This was against the principle of res judicata and thus an abuse of court process.

28.In her summons, the defendant described the Wife as a “third party defendant” because the Wife “has breached her husband’s confidence”.  That defies proper understanding as a matter of law.

29.As a matter of fact, the complaint of the plaintiff and the Wife is not so much about the obtaining and use of the alleged confidential information by the defendant but the defendant’s own subsequent use of such information for publication on the internet, that allegedly exceeded the ambit and purpose as understood by both the plaintiff and the Wife at the relevant time.  Of course, this is factual dispute to be tried.

30.In the event that the defendant was referring to third party action, her application fell short of what O.16, r.2 requires as a matter of procedure.

31.For these reasons, I allowed the plaintiff’s application to join the Wife as the 2^nd plaintiff in terms as set out below.  I dismissed the defendant’s application to join the Wife as a defendant.

AMENDMENT OF THE STATEMENT OF CLAIM

32.Contrary to Mr Chain’s submissions, the proposed amendments were not entirely consequential upon the joinder of the Wife as the 2^nd plaintiff. The plaintiff also sought to add numerous reliefs, including damages, account of profits and interest (§§12A, 12B and 13; and §§(5), (6) and (7) of the prayer).

33.I questioned about the proposed additional relief of an order contra mumdum restraining the world at large from publishing the personal information in question without the plaintiffs’ express prior consent.  After exchange during the hearing, Mr Chain withdrew that part of the proposed amendments from the present application.  I put on record that this would not necessarily prevent the plaintiffs from adding such claim in the future, subject to application, if they chose to do so.

34.I also raised queries in respect of the proposed additional relief of an order requiring the defendant to deliver up or destroy all forms of the personal information in question in her possession, custody or power.  Eventually I agreed with Mr Chain that this, as a matter of amendment, was not objectionable.  It remains the burden of the plaintiffs to establish whether and, if yes, to what extent they are entitled to the relief at the trial.  I say the same in respect of the other reliefs now added by way of amendment.

THE DEFENDANT’S OTHER APPLICATIONS

35.By her summons, the defendant also applies for the setting aside of the interim injunction dated 19 October 2012 and the interlocutory injunction dated 6 February 2013 as well as stay of the orders.  As mentioned, they already formed the subject matter of the earlier summons taken out by the defendant on 25 April 2013.  It will be heard on 6 January 2014.  This part of her present summons was superfluous, if not abusive of court process.

ORDER

36.Hence the following order made:

(1)   Upon the plaintiff’s undertaking to file the written consent of the Wife to be joined as the 2^nd plaintiff by 4:30 pm of 2 October 2013, leave to the plaintiff to so join the Wife;

(2)   Leave to plaintiff to amend the statement of claim as per the draft amended statement of claim annexed to his summons, save that paragraph (3) of the prayer contained in the draft is withdrawn;

(3)   The plaintiff do file and serve the amended statement of claim within 7 days from the date hereof;

(4)   Leave to the defendant to file and serve amended defence within 28 days upon service of the amended statement of claim;

(5)   Leave to the plaintiff to file and serve the reply, if any, within 28 days thereafter;

(6)   The close of pleadings shall be taken to be the date of the service of the reply, if any;

(7)   The defendant’s application to join the Wife (paragraph iii of her summons) be dismissed;

(8)   There be no order as to the defendant’s application in respect of the orders dated 19 October 2012 and 6 February 2013 (paragraphs i and ii of her summons) for the same should form the subject matter of her summons dated 25 April 2013 to be heard on 6 January 2014.

37.As to costs, I made the following order:

(1)   Costs of the amendment to the defence incidental to the amendments to the statement of claim be to the defendant in any event, to be taxed if not agreed;

(2)   Costs of the plaintiff’s application for joinder of the Wife be to the plaintiff in any event;

(3)   Costs of and occasioned by the defendant’s application for joinder of the Wife be to the plaintiff in any event;

(4)   In respect (2) and (3) above, the plaintiff do submit and serve statement of costs by 4:30 pm of 2 October 2013 for summary assessment by the court;

(5)   The defendant do submit and serve written comment, if any, on the plaintiff’s statement of costs within 14 days upon service of the same.

Mr Christopher CHAIN, instructed by Maurice WM Lee for the plaintiff

The defendant, in person, absent