IN THE DISTRICT COURT OF HONG KONG
HOLDEN AT KOWLOON
ACTION NO. 2105 OF 1971
||TSE Tsun Man
|The Kowloon Motor Bus Co. (1933) Ltd.
|YAU Kin Chun
Coram: Judge Addison.
Date of Judgment: 22nd November 1971.
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 parte 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 cases 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  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...