Caroline Anne Babington v Fung Hing Biu

CourtDistrict Court (Hong Kong)
Judgment Date03 November 1981
Judgement NumberDCCJ3776/1980
Subject MatterCivil Action
DCCJ003776A/1980 CAROLINE ANNE BABINGTON v. FUNG HING BIU

DCCJ003776A/1980

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO.3776 OF 1980

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BETWEEN
CAROLINE ANNE BABINGTON an infant by TIMOTHY FRANCIS BABINGTON her father and next friend Plaintiff
and
FUNG HING BIU Defendant

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Coram: H.H. Judge Corcoran in Court

Date of Judgment: 3rd November 1981

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JUDGMENT

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1. On the 4th June 1980, the plaintiff, an infant aged 10 years, suing by her father and next friend, instituted proceedings against the defendant claiming damages for injuries received when she was bitten by the defendant's dog. A defence was duly filed on the 16th June 1980. On the 23rd July 1980, upon application made on behalf of the plaintiff, Judge Moylan ordered, inter alia, that the plaintiff have liberty to file a reply to the defendant's defence within 7 days of the order and that an application for a fixture for the trial of this action be made by the plaintiff within 7 days of the filing of the reply. The order further provided for filing of lists of documents within 14 days of the filing of the reply and for inspection of documents.

2. The plaintiff's reply was filed on 25th July 1980 and the plaintiff and defendant filed their lists of documents (out of time by consent) on the 20th August and 3rd September respectively.

3. The plaintiff failed to apply for a fixture for the trial of the action with the time fixed by the Judge's order i.e. within 7 days of the filing of the reply. The plaintiff now asks the Court for an order that she be at liberty to apply for a fixture for trial notwithstanding that the time limited for doing so by the Judge's order has expired.

4. Rule 31(2) of the District Court Civil Procedure (General) Rules provides:

"Where no application to fix a date for the hearing of an action is made under rule 24 within 3 months from the date on which the defence or counterclaim was filed the Registrar shall strike out the action from the Register of Civil Actions."

5. Rule 24 provides for an application by either party to the Registrar to fix a date for trial. There is no obligation upon a party to apply for a date of hearing to be fixed but Rule 31(2) provides that if no such application is made within 3 months from the date on which the...

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