Tse Tsun Man v The Kowloon Motor Bus Co (1933) Ltd And Another

Judgment Date22 November 1971
CourtDistrict Court (Hong Kong)
Judgement NumberDCCJ2105/1971
Subject MatterCivil Action
DCCJ002105A/1971 TSE TSUN MAN v. THE KOWLOON MOTOR BUS CO (1933) LTD AND ANOTHER

DCCJ002105A/1971

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CIVIL JURISDICTION

ACTION NO. 2105 of 1971

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BETWEEN: TSE Tsun Man Plaintiff
and
The Kowloon Motor Bus Co. 1st Defendant
(1933) Ltd.
YAU Kin Chun 2nd Defendant

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Coram: Judge Addison.

Date of Judgment: 22nd November, 1971

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RULING

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1. On the 7th April 1971 the plaintiff suing on the capacity as administrator of the estate of one TSE Tim, instituted proceedings against the defendants for damages under the Fatal Accidents Ordinance, Cap.22 and the Law Reform (Miscellaneous Provisions) Ordinance, Cap.241 for their alleged liability for the death of the above-named deceased.

2. A defence denying liability was filed out of time, with the consent of the plaintiffs, on the 10th May, 1971. Thereafter the plaintiffs made no application to fix a date for the hearing of the action with the result that the Deputy Registrar of the Kowloon District Court made an order, on the 9th August, 1971 ordering that the action be struck out from the Register of Civil Actions under rule 31 of District Court Civil Procedure (General) Rules.

3. His order did not specify that it was made under sub-rule (2) of rule 31 but there is no doubt this was the case because sub-rule (1) of rule 31 only applies where no defence or counterclaim is filed.

4. Rule 31(2) provides:

"Where no application to fix a date for the hearing of an action is made under rule 24 within three 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. That the Deputy Registrar is competent to exercise the functions of the Registrar is ascertainable from the definition of "Registrar" in the District Court (Civil Jurisdiction and Procedure) Ordinance, Cap.336 as read with section 11 of the District Court Ordinance, Cap.5. Pursuant to the order made by the Deputy Registrar the plaintiff's solicitors took out an inter parts summons dated the 29th October 1971 for the action to "be restored to the Register of Civil Actions", and for an order that the plaintiff have leave to file his application to fix a date for hearing out of time.

6. This summons was returnable on the 12th November, 1971 on which date I adjourned the application until the 15th November, 1971 in order to hear argument as to whether I had jurisdiction to entertain it. The defendants do not oppose an order being made but the parties cannot by consent confer a jurisdiction on the court which it does not have.

7. On the 15th November, 1971 Mr. TSANG who appeared for the plaintiff referred me to the Supreme Court Practice 1970, O.3 r. 5 note 3/5/5 on page 16.

8. That reads as follows:

"Where an order is made dismissing an action for want of prosecution unless some act is done within a specified time, and the act is not in fact done within that time, the action ceases to exist and thereafter no order can be made extending the time for doing the act. (Whistler v. Hancock 3 Q.B.D. 83; King v. Davenport 4 Q.B.D. 402; Script Phonograph Co. v. Gregg 59 L.J. Ch. 406, C.A. Contrast the decision of kekewich, J. in Collinson v. Jeffery [1896] 1 Ch. 644, a redemption action). Accordingly if an application for extension of time is not made and heard before the time limited by the order has expired, the only remedy is to appeal from the order dismissing the action, and, (if necessary) to apply at the same time for an extension of time for appealing (Carter v. Stubbs, 6 Q.B.D. 116 C.A.)"

9. It was to the latter case that he referred me and he asked me to treat the application dated the 29th October, 1971 as one as an appeal from the order made by the Deputy Registrar on the 9th August, 1971.

10. Reference was made in the case of Carter v. Stubbs to the earlier cases of Whistler v. Hancock 3 Q.B.D. 83, Wallis v. Hepburn 3 Q.B.D. 84, King v. Davenport 4 Q.B.D. 402 and Burke v. Rooney 4 C.P.D. 226.

11. Lord Selbourne, L.C. in Carter v. Stubbs distinguished the cases of Whistler v. Hancock and Wallis v. Hepburn. He said at p.118 of the report:

"In those cases the order dismissing the action was in force and not appealed against, and also there was no application to enlarge the time for appealing, but some other orders were asked to be made for extending the time for doing something in the action and it was there held rebus existentibus that there was no power to make such orders, as the action was no longer in existence. Those cases have no application here, where the form of the order is for enlargement of the time for appealing against the order dismissing the action, and an order of this kind is within the meaning of Order LVII rule 6 which expressly says that such enlargement may be ordered after the expiration of the time allowed for doing the act."

12. In the Carter case the facts were a little unusual. An order was made by Master Francis ordering that if answer to interrogatories were not filed by the plaintiff within 7 days his action would be dismissed. The plaintiff failed to do so and his action was dismissed for want of prosecution. Subsequently Master Gordon rescinded the order and granted the plaintiff 7 days extra time to deliver notice of...

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