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Secretary For Justice v The Hong Kong & Yaumati Ferry Co. Ltd. And Another

Judgment Cited authorities 5 Cited in Precedent Map Related
Vincent
Judgment Date02 February 2001
Year2001
Judgement NumberCACV819/2000
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV000819/2000 XCHRX SECRETARY FOR JUSTICE v. THE HONG KONG & YAUMATI FERRY CO. LTD. AND ANOTHER

CACV000819/2000

CACV 819/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 819 OF 2000

(ON APPEAL FROM HCA No 15329 of 1999)

______________________________________

BETWEEN
SECRETARY FOR JUSTICE Plaintiff
AND
THE HONG KONG & YAUMATI FERRY CO. LTD 1st Defendant
THE HONG KONG FERRY (HOLDINGS) CO. LTD 2nd Defendant

___________________________________________

Coram: Hon Le Pichon JA in Chambers

Date of Hearing: 23 January 2001

Date of Handing Down of Decision: 2 February 2001

_____________

D E C I S I O N

_____________

Hon Le Pichon JA:

1. This is an application to extend the time for serving a notice of appeal by 11 days.

2. On 18 September 2000 the judge dismissed the plaintiff's applications made under Order 14A as well as under Order 18 rule 19 of the Rules of the High Court ("RHC"). The order was sealed on 16 October 2000 by the plaintiff.

3. It is common ground that the correct test to be applied in determining for the purposes of the time limit set out in Order 59 Rule 4(1)(a) of the RHC is the "applications" test referred to First Pacific Bank Ltd v Robert HP Fung [1990] 1 HKLR 527 at 529H, approved by the Court of Final Appeal in Wai Hung Stationery Co. v HKSAR [1998] 1 HKLRD 445 at 446H and that, applying that test, the order made in the Order 14A application was an interlocutory rather than a final order. There was never any question that the order made dismissing the Order 18 rule 19 application was anything but an interlocutory order. Time for appealing the order dismissing both the Order 14A application and the Order 18 rule 19 application therefore expired on 30 October 2000. The notice of appeal was filed and served on 10 November 2000 and was therefore 11 days late.

The court's discretion

4. A convenient summary of the guiding principles which govern how the court should exercise its discretion to extend time may be found in the judgment of Keith J (as he then was) in Chiu Sin-chung v Yu Yan-yan, Angela and another [1993] 1 HKLR 225 at p. 227 line 37 - p. 228 line 29:

"(i) 'The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules, which is to provide a time table for the conduct of litigation': Thamboo Ratnam v. Thamboo Cumarasamy & Cumarasamy Ariamany [1965] 1 WLR 8 at p. 12A-B, applied in Revici v. Prentice Hall Inc. [1969] 1 WLR 157 and in Re Adhiguna Meranti [1988] 1 HKLR 410.

(ii) Accordingly, the prerequisite of an application to extend time is a clear statement as to the reasons for the time limits not having been observed and for any delay in then applying for an extension.

(iii) 'Once the time for appealing has elapsed, the respondent who was successful in the court below is entitled to regard the judgment in his favour as being final. If he is to be deprived of this entitlement, it can only be on the basis of a discretionary balancing exercise, however blameless may be the delay on the part of the would-be appellant': Norwich & Peterborough Building Society v. Steed [1991] 1 WLR 449 at p. 454G.

(iv) The factors which are normally to be taken into account in that balancing exercise are (a) the length of the delay, (b) the reasons for the delay, (c) the chances of the appeal succeeding if an extension of time for appealing is granted, and (d) the degree of prejudice to the would-be respondent if the application for an extension is granted: Steed, p. 454H.

(v) As for the reasons for the delay, 'the fact that the omission to appeal in due time was due to a mistake on the part of the legal adviser, may be a sufficient cause to justify the court in exercising its discretion': Gatti v. Shoosmith [1939] 3 All ER 916 at p. 919G. Indeed, in that case, the Court of Appeal extended the time without consideration of the merits at all: the period involved was only a matter of a few days, the appellant's solicitors had informed the respondent's solicitors within time of the appellant's intention to appeal, and the mistake was one 'which, to anyone who was reading the rule without having the authorities in mind, might very well have arisen'.

(vi) Although the existence of prejudice to a would-be respondent is a ground for refusing an extension of time, the absence of prejudice to a would-be respondent is not a ground for extending the time: Re Adhiguna Meranti, p. 411H.

(vii) As for the merits, they will play little part in the balancing exercise if the delay is short and is wholly excusable, but where the delay is substantial and is not wholly excusable, much more merit is required to overcome it: Steed, p. 455G-H, distinguishing Palata Investments Ltd. v. Burt & Sinfield Ltd. [1985] 1 WLR 942 from Rawasdeh v. Lane (Court of Appeal (Civil Division) Transcript No. 327 of 1988)."

5. I now turn to consider the relevant factors identified in (iv) above other than the length of delay which, as noted above, was 11 days.

Reasons for the delay

6. An affirmation was filed in support of the plaintiff's application. Mr Hill deposed to the fact that the plaintiff's notice of appeal was issued and served on 10 November 2000 "within 28 days of the sealing of the Order on the basis that the appeal was against a final judgment." But how the "mistake" arose or the reasons that led to the erroneous conclusion that the order was a final order remained unexplained.

7. In the Chiu Sin-chung's case, the plaintiff was wrongly advised by his solicitors that he had 14 rather than 5 days to appeal from the Master's Order. As Keith JA pointed out in Tridant Engineering Co. Ltd v Mansion Holdings Ltd CACV 311/2000 (at p. 8 of the judgment), although the delay in Chiu Sin-chung's case was explained on the basis that the solicitor had mistaken the time for filing the notice of appeal, how the mistake arose was unexplained. The solicitor did not explain how he came to think that the time for filing the notice of appeal was 14 days, when it was 5 clear days. Keith JA concluded that the lack of an explanation for the matter made the solicitors' conduct inexcusable.

8. That analysis appears to be equally applicable to the facts of the present case. The absence of any explanation of how the plaintiff's solicitor came to think that the time for filing the notice of appeal was 28 days rather than 14 days made the solicitor's conduct "inexcusable". By way of contrast, in Tridant Engineering Co. Ltd v Mansion Holdings Ltd, there had been a recent change in the law and the period for an appeal which had for many years been 6 weeks was reduced to 4 weeks shortly before the sealing of the order in that case which rendered the mistake "understandable". No such mitigating factor appears to exist in the present case.

9. Although the affirmation referred to a "lack of clarity" on the timeliness of the notice, that conclusion only came about after the defendants had reserved their right to assert that the notice was out of time. It has every appearance of being an ex post facto rationalisation of why the notice was served out of time. No evidence has been put forward to suggest that the question of when the notice ought to be served was ever actively considered by the plainitiff's legal advisers. Rather it would appear that an erroneous assumption was made that the time period was 28 days rather than 14 days.

10. So, despite the assertion in the supporting affirmation that there was a "lack of clarity" concerning the timeliness of the notice of appeal, interestingly, that position is no longer maintained by the plaintiff. As noted above, it is accepted by the plaintiff that the judge's order dismissing...

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