Coram: Hon Fuad, V-P, Kempster, JA and Nazareth, J
Date of Hearing: 5 October 1990
Date of Judgment: 5 October 1990
Kempster, JA :
1. This is the judgment of the Court.
2. These are appeals from orders of Jones J made on 5 June 1989 in three actions between the same parties whereby, without a hearingon the merits, he dismissed motions by the plaintiffs to strike out the respective defences and counterclaims.
3. On 27 June the learned judge handed down the reasons for his decisions. In summary he regarded applications to strike out made bymotion as inappropriate having regard to the coordinate jurisdiction conferred on Masters by Order 32 rule 11 of the Rules of theSupreme Court. By proceeding as they did, he held, the plaintiffs had sought to eliminate the first stage in seeking interlocutoryrelief and, thereby, to gain an unfair advantage over other litigants. A party seeking to strike out his opponent’s pleading must,the judge held, proceed by way of summons before a master in the first instance.
4. In England the practice has differed depending on the division of the High Court in which the proceedings have been commenced. Inthe Queen’s Bench Division the practice was and is to go by way of summons to a master while in the Chancery Division, prior to aPractice Direction made in 1984, [1984 1WLR 447] the practice also allowed a motion to the judge in court. By section 12(2)(a) ofthe Supreme Court Ordinance (Cap 4) both Queen’s Bench and Chancery jurisdictions are conferred upon the High Court of Hong Kong.However, since we do not have separate divisions, our Order 32 makes no distinction as between the applicable forms of practice.No more do we have any equivalent of the English Practice Direction just referred to. There is no provision in Order 8 of our rules,or in any other rule, precluding the issue of a Notice of Motion for hearing by a judge in court in relation to interlocutory mattersas opposed to the issue of a summons for hearing before a master. Had there been any such inhibition no doubt the point would havebeen taken in the Registry.
5. Applications to strike out by Notice of Motion are not uncommon. Unhappily Mr Fung, who represented and represents the plaintiffs,had not anticipated or prepared for the attitude which the judge adopted and was not armed with authorities illustrating recourseto that procedure in this jurisdiction. We would refer, for example, to Pao Yuen Tung Hsing Co Ltd v Pao Hsing Cotton Mill Ltd, Hign Court Action No 765 of 1981 (unreported); Cheung v Cheung  HKLR 585; Carrian Investments Ltd v Wong Chong Po  HKLR 945 and The Estate of Yang Sen Hui deceased v Pao Yuen Tung (1983) HKLR 124.
6. In the absence of a Practice Direction or some very exceptional circumstance we cannot uphold the judge’s approach to motions dulybrought before him in accordancewith the provisions of the Rules of the Supreme Court. We accept Mr Fung’s submission that motiveis irrelevant. Further, we do not think it is appropriate for a judge to seek, essentially, to impose a new Practice Direction underthe guise of regulating procedure in his own court. He could, of course, properly have reflected his opinion as to the undesirabilityof the course taken by the plaintiffs by his order as to costs.
7. In the circumstances we allow the appeals against the orders dismissing the applications. The effect of our so doing is to restorethe motions for hearing before Jones J or some other judge of the High Court.
8. There remains one further matter. Mr Fung invites us now to hear the striking-out applications. This, insofar as we have any discretionin the matter, we decline to do. The other parties should not be deprived of the normal avenues of appeal merely because, on thearguments addressed to us, the plaintiffs’ case appears to be particularly strong. Further, if we were to entertain the substantiveapplications we might well be exercising an original jurisdiction which is not conferred upon us, being only a statutory body, bysection 13(2) of the Supreme Court Ordinance which reads –
“The civil jurisdiction of the Court of Appeal shall consist of –
Patrick Fung (M/s Deacons) for Plaintiffs/Appellants
Denis Chang, QC and K.B. Ng (M/s Ng, Lie, Lai & Chan) for Defendants/Respondents