DCEC832/2012 LAU SAU FAI v. CHINA STATE CONSTRUCTION ENGINEERING (HONG KONG) LTD - LawHero
DCEC832/2012
區域法院（僱員補償）His Honour Judge Kent Yee12/8/2013
DCEC832/2012
由此
A A
DCEC 832/2012
B B
IN THE DISTRICT COURT OF THE
C C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D EMPLOYEES’S COMPENSATION CASE No. 832 OF 2012 D
____________
E E
F F
BETWEEN
G G
LAU SAU FAI Applicant
H H
I and I
J J
CHINA STATE CONSTRUCTION
K ENGINEERING (HONG KONG) LIMITED Respondent K
L ____________ L
M M
Before: His Honour Judge Kent Yee in Chambers (open to public)
N Date of Hearing: 13 August 2013 N
Date of Decision: 13 August 2013
O O
_______________________________________
P P
DECISION
Q _______________________________________ Q
R Introduction R
1. This is an application of the respondent to consolidate the
S S
present proceedings (“the 1 st
Application”) and another set of
T proceedings commenced by the same applicant against the respondent T
U U
V V
由此
- 2 -
A A
under DCEC 940/2012 (“the 2nd Application”) by its summons dated
B 31 May 2013. B
C C
2. The two applications allegedly involve two separate
D accidents occurring on two different dates in September 2011 of D
which the respondent puts the applicant to strict proof in its respective
E E
Answers filed in the two applications. It is not in dispute that the
F applicant was the employee of the respondent at the material times of F
the two applications.
G G
H Governing principles H
3. The present application is made pursuant to Order 4 rule 9
I I
of the Rules of the District Court. The provision reads as follows:
J J
“(9) Where two or more causes or matters are pending, then, if it
K K
appears to the Court –
(a) that some common question of law or facts arises in both or all
L L
of them or
M (b) that the rights to relief claimed therein are in respect of or arise M
out of the same transaction or series or transactions, or
N N
(c) that for some other reason it is desirable to make an order under
this rule
O O
the Court may order those causes or matters to be consolidated on
P such terms as it thinks just or may order them to be tried at the same P
time, or one immediately after another, or may order any of them to
Q be stayed until the determination of any other of them.” Q
R R
S 4. It is common ground that in dealing with an application S
under this rule, the court has an unfettered discretion. The principal
T T
objective of an order for consolidation is to save time and costs.
U U
V V
由此
- 3 -
A A
There is no hard and fast rule and all the circumstances of the
B situation have to be taken into account: Sincere View International B
Limited v Kenco Investments Limited & Ors, unreported, HCA
C C
301/2005, 3.2.2006 per Kwan J (as she then was) at §14.
D D
Order of Chief District Judge Poon dated 26 October 2012 (“the
E E
Order”)
F 5. The present application appears to be objectionable to me F
in the light of the Order. Paragraph 1 of the Order reads:
G G
H “DCEC832/2012 and DCEC940/2012 are to be dealt with H
together.”
I I
J 6. It is necessary to look into the history of the Order. The J
Order was made by the judge after hearing the parties at the first
K K
hearing of the 1st Application. Immediately before the said first
L hearing, in the Joint Written Application dated 25 October 2012, the L
parties indicated to the court that the respondent proposed that the 1st
M M
nd
Application be consolidated with the 2 Application and that the
N applicant did not agree to this proposal. The purpose of this indication N
was to inform the court of the likelihood of any further interlocutory
O O
application.
P P
Q
7. On the same date, nonetheless, the parties signed and filed Q
a consent summons with a view to vacating the said first hearing.
R R
However, the judge asked the parties to attend the said first hearing
S and requested that the case file of the 2 nd Application should be S
brought up for consideration.
T T
U U
V V
由此
- 4 -
A A
8. The transcript of the said first hearing was made available
B to me and it helped me understand the circumstances leading to the B
making of the Order. First, Mr Wong appearing for the respondent
C C
indicated to the court that the respondent had not made a formal
D application for consolidation yet. Then Mr Wong told the court why D
he thought the respondent had a strong case on consolidation. Mr Fu
E E
appearing for the applicant also made his position clear. He wanted
F that the 1st and 2nd Applications to be heard one after the other or be F
dealt with together instead of consolidation.
G G
H 9. Chief District Judge Poon then observed that it did not H
matter a lot whether the two applications were to be consolidated if
I I
they were to be dealt with together. Mr Wong in reply indicated, in
J his own words, that he would not insist on these “verified procedural J
differentiation to be dealt with together” and just that he did not agree
K K
that the two applications should be dealt with one after the other. The
L judge then moved on to other case management matters. L
M M
The present application
N 10. It thus appears to me that the issue of consolidation was N
properly canvassed at the said first hearing and after hearing the
O O
arguments, the judge duly made a case management decision. There
P P
is no reason why the respondent should be entitled to reopen the issue
Q
absent any change of circumstances. Q
R R
11. Mr Wong submits that there was no formal application
S before the judge. However, as pointed out to Mr Wong, according to S
the letters of the said rule, the court is entitled to make such an order
T T
under the said rule even without an application by either parties.
U U
V V
由此
- 5 -
A A
12. Mr Wong then submits that the Order was not exactly made
B under the said rule as it was only ordered that the two applications B
were to be dealt with together and not to be heard together. I find no
C C
merit in this submission. On a fair and plain interpretation of the
D Order, it must mean that the two applications were to be heard D
together.
E E
F 13. Mr Wong further argues that he is not seeking to challenge F
and/or vary the Order by this application despite his criticism that full
G G
arguments were not ventilated at the said first hearing. He contends
H that the subsequent development of these proceedings warrants a H
consolidation order. He submits that when he attempted to file one list
I I
of documents for the 1st and 2nd Applications in a consolidated
J manner subsequent to the Order, the Registry of the District Court J
refused to accept the document and asked the respondent to file a
K K
separate list of document for each of the Applications.
L L
14. The Registry of the District Court was clearly right. In the
M M
absence of a consolidation order, the respondent could not file one
N single list for both applications. The unsuccessful attempt to file the N
document is merely a natural consequence of the Order and I fail to
O O
see how this amounts to a new development.
P P
Q
15. Even if I have jurisdiction to allow the respondent to have Q
a second bite of the cherry, I am far from persuaded that a
R R
consolidation order in lieu of the Order can save more time and
S costs. S
T T
16. I would readily accept that there might be duplication of
U U
V V
由此
- 6 -
A A
documents to be filed in the 1st and 2nd Applications. The only
B outstanding matters in the two applications, as indicated to the judge, B
were about the filing of evidence, both factual and medical. I am not
C C
given any estimate of the extra costs necessitated by the absence of a
D consolidation order. On the other hand, I bear in mind that the D
preparation and filing of pleadings for the purpose of a consolidated
E E
action would also require time and incur costs and I am not convinced
F by the evidence before me that such costs would be worthwhile to F
save the costs arising out of duplication of documents further down
G G
the road.
H H
17. Lastly, Mr Wong submits that it is also in the interest of
I I
the applicant, who is legally aided in both applications, to have the
J two applications consolidated in the event that he wins both. I am not J
so persuaded on the evidence.
K K
L Conclusion and Orders L
18. I thus come to the conclusion that this application has no
M M
merit. I order that that this application should be dismissed. Mr Wong
N accepts that costs should follow the event. Mr Fu handed up his N
statement of costs. Mr Wong objects to certain items of the statement
O O
and argues that in this simple matter, the hourly rate of Mr Fu should
P P
be reduced from HK$2,600 to HK$2,300. Mr Wong further argues
Q
that the adjournment of the hearing of this application was Q
necessitated by the late production of the transcript by the applicant
R R
and so there should be adverse costs consequences against the
S applicant. S
T T
U U
V V
由此
- 7 -
A A
19. As the parties agree that summary assessment is
B appropriate, I am minded to take a broad-brush approach. B
Nonetheless, I should make it clear that I do not think the applicant
C C
could be blamed for the adjournment. The hearing originally fixed on
D 27 June 2013 was a 15-minute one and it could merely be for D
call-over purpose given the parties had already filed 4 affirmations.
E E
The hearing was only duly vacated by the parties for a full-blown
F argument before this court. F
G G
20. Given the simple nature of this application and the
H evidence prepared by the application in opposition thereto, I conclude H
that HK$25,000 is an appropriate figure to cover the costs of the
I I
applicant. I hence make an order nisi that the respondent do pay costs
J of and occasioned by this application to the applicant in the sum of J
HK$25,000 assessed summarily. The applicant’s own costs to be
K K
taxed in accordance with the Legal Aid Regulations.
L L
21. Lastly, I thank Mr Wong and Mr Fu for their helpful
M M
assistance.
N N
O O
P P
(Kent Yee)
District Judge
Q Q
R R
S S
Mr Fu Yu Hong of Messrs Sam Fu & Co. for the Applicant
T Mr Henry Wong of Messrs Henry H.C. Wong & Co. for the Respondent T
U U
V V
LAU SAU FAI v. CHINA STATE CONSTRUCTION ENGINEERING (HONG KONG) LTD
由此
A A
DCEC 832/2012
B B
IN THE DISTRICT COURT OF THE
C C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D EMPLOYEES’S COMPENSATION CASE No. 832 OF 2012 D
____________
E E
F F
BETWEEN
G G
LAU SAU FAI Applicant
H H
I and I
J J
CHINA STATE CONSTRUCTION
K ENGINEERING (HONG KONG) LIMITED Respondent K
L ____________ L
M M
Before: His Honour Judge Kent Yee in Chambers (open to public)
N Date of Hearing: 13 August 2013 N
Date of Decision: 13 August 2013
O O
_______________________________________
P P
DECISION
Q _______________________________________ Q
R Introduction R
1. This is an application of the respondent to consolidate the
S S
present proceedings (“the 1 st
Application”) and another set of
T proceedings commenced by the same applicant against the respondent T
U U
V V
由此
- 2 -
A A
under DCEC 940/2012 (“the 2nd Application”) by its summons dated
B 31 May 2013. B
C C
2. The two applications allegedly involve two separate
D accidents occurring on two different dates in September 2011 of D
which the respondent puts the applicant to strict proof in its respective
E E
Answers filed in the two applications. It is not in dispute that the
F applicant was the employee of the respondent at the material times of F
the two applications.
G G
H Governing principles H
3. The present application is made pursuant to Order 4 rule 9
I I
of the Rules of the District Court. The provision reads as follows:
J J
“(9) Where two or more causes or matters are pending, then, if it
K K
appears to the Court –
(a) that some common question of law or facts arises in both or all
L L
of them or
M (b) that the rights to relief claimed therein are in respect of or arise M
out of the same transaction or series or transactions, or
N N
(c) that for some other reason it is desirable to make an order under
this rule
O O
the Court may order those causes or matters to be consolidated on
P such terms as it thinks just or may order them to be tried at the same P
time, or one immediately after another, or may order any of them to
Q be stayed until the determination of any other of them.” Q
R R
S 4. It is common ground that in dealing with an application S
under this rule, the court has an unfettered discretion. The principal
T T
objective of an order for consolidation is to save time and costs.
U U
V V
由此
- 3 -
A A
There is no hard and fast rule and all the circumstances of the
B situation have to be taken into account: Sincere View International B
Limited v Kenco Investments Limited & Ors, unreported, HCA
C C
301/2005, 3.2.2006 per Kwan J (as she then was) at §14.
D D
Order of Chief District Judge Poon dated 26 October 2012 (“the
E E
Order”)
F 5. The present application appears to be objectionable to me F
in the light of the Order. Paragraph 1 of the Order reads:
G G
H “DCEC832/2012 and DCEC940/2012 are to be dealt with H
together.”
I I
J 6. It is necessary to look into the history of the Order. The J
Order was made by the judge after hearing the parties at the first
K K
hearing of the 1st Application. Immediately before the said first
L hearing, in the Joint Written Application dated 25 October 2012, the L
parties indicated to the court that the respondent proposed that the 1st
M M
nd
Application be consolidated with the 2 Application and that the
N applicant did not agree to this proposal. The purpose of this indication N
was to inform the court of the likelihood of any further interlocutory
O O
application.
P P
Q
7. On the same date, nonetheless, the parties signed and filed Q
a consent summons with a view to vacating the said first hearing.
R R
However, the judge asked the parties to attend the said first hearing
S and requested that the case file of the 2 nd Application should be S
brought up for consideration.
T T
U U
V V
由此
- 4 -
A A
8. The transcript of the said first hearing was made available
B to me and it helped me understand the circumstances leading to the B
making of the Order. First, Mr Wong appearing for the respondent
C C
indicated to the court that the respondent had not made a formal
D application for consolidation yet. Then Mr Wong told the court why D
he thought the respondent had a strong case on consolidation. Mr Fu
E E
appearing for the applicant also made his position clear. He wanted
F that the 1st and 2nd Applications to be heard one after the other or be F
dealt with together instead of consolidation.
G G
H 9. Chief District Judge Poon then observed that it did not H
matter a lot whether the two applications were to be consolidated if
I I
they were to be dealt with together. Mr Wong in reply indicated, in
J his own words, that he would not insist on these “verified procedural J
differentiation to be dealt with together” and just that he did not agree
K K
that the two applications should be dealt with one after the other. The
L judge then moved on to other case management matters. L
M M
The present application
N 10. It thus appears to me that the issue of consolidation was N
properly canvassed at the said first hearing and after hearing the
O O
arguments, the judge duly made a case management decision. There
P P
is no reason why the respondent should be entitled to reopen the issue
Q
absent any change of circumstances. Q
R R
11. Mr Wong submits that there was no formal application
S before the judge. However, as pointed out to Mr Wong, according to S
the letters of the said rule, the court is entitled to make such an order
T T
under the said rule even without an application by either parties.
U U
V V
由此
- 5 -
A A
12. Mr Wong then submits that the Order was not exactly made
B under the said rule as it was only ordered that the two applications B
were to be dealt with together and not to be heard together. I find no
C C
merit in this submission. On a fair and plain interpretation of the
D Order, it must mean that the two applications were to be heard D
together.
E E
F 13. Mr Wong further argues that he is not seeking to challenge F
and/or vary the Order by this application despite his criticism that full
G G
arguments were not ventilated at the said first hearing. He contends
H that the subsequent development of these proceedings warrants a H
consolidation order. He submits that when he attempted to file one list
I I
of documents for the 1st and 2nd Applications in a consolidated
J manner subsequent to the Order, the Registry of the District Court J
refused to accept the document and asked the respondent to file a
K K
separate list of document for each of the Applications.
L L
14. The Registry of the District Court was clearly right. In the
M M
absence of a consolidation order, the respondent could not file one
N single list for both applications. The unsuccessful attempt to file the N
document is merely a natural consequence of the Order and I fail to
O O
see how this amounts to a new development.
P P
Q
15. Even if I have jurisdiction to allow the respondent to have Q
a second bite of the cherry, I am far from persuaded that a
R R
consolidation order in lieu of the Order can save more time and
S costs. S
T T
16. I would readily accept that there might be duplication of
U U
V V
由此
- 6 -
A A
documents to be filed in the 1st and 2nd Applications. The only
B outstanding matters in the two applications, as indicated to the judge, B
were about the filing of evidence, both factual and medical. I am not
C C
given any estimate of the extra costs necessitated by the absence of a
D consolidation order. On the other hand, I bear in mind that the D
preparation and filing of pleadings for the purpose of a consolidated
E E
action would also require time and incur costs and I am not convinced
F by the evidence before me that such costs would be worthwhile to F
save the costs arising out of duplication of documents further down
G G
the road.
H H
17. Lastly, Mr Wong submits that it is also in the interest of
I I
the applicant, who is legally aided in both applications, to have the
J two applications consolidated in the event that he wins both. I am not J
so persuaded on the evidence.
K K
L Conclusion and Orders L
18. I thus come to the conclusion that this application has no
M M
merit. I order that that this application should be dismissed. Mr Wong
N accepts that costs should follow the event. Mr Fu handed up his N
statement of costs. Mr Wong objects to certain items of the statement
O O
and argues that in this simple matter, the hourly rate of Mr Fu should
P P
be reduced from HK$2,600 to HK$2,300. Mr Wong further argues
Q
that the adjournment of the hearing of this application was Q
necessitated by the late production of the transcript by the applicant
R R
and so there should be adverse costs consequences against the
S applicant. S
T T
U U
V V
由此
- 7 -
A A
19. As the parties agree that summary assessment is
B appropriate, I am minded to take a broad-brush approach. B
Nonetheless, I should make it clear that I do not think the applicant
C C
could be blamed for the adjournment. The hearing originally fixed on
D 27 June 2013 was a 15-minute one and it could merely be for D
call-over purpose given the parties had already filed 4 affirmations.
E E
The hearing was only duly vacated by the parties for a full-blown
F argument before this court. F
G G
20. Given the simple nature of this application and the
H evidence prepared by the application in opposition thereto, I conclude H
that HK$25,000 is an appropriate figure to cover the costs of the
I I
applicant. I hence make an order nisi that the respondent do pay costs
J of and occasioned by this application to the applicant in the sum of J
HK$25,000 assessed summarily. The applicant’s own costs to be
K K
taxed in accordance with the Legal Aid Regulations.
L L
21. Lastly, I thank Mr Wong and Mr Fu for their helpful
M M
assistance.
N N
O O
P P
(Kent Yee)
District Judge
Q Q
R R
S S
Mr Fu Yu Hong of Messrs Sam Fu & Co. for the Applicant
T Mr Henry Wong of Messrs Henry H.C. Wong & Co. for the Respondent T
U U
V V