MICHAEL ERIC ALEXANDER BOS MAK v. OSVALDO PATRIZZI

CACV000103A/1991

IN THE COURT OF APPEAL 1991, No. 103
(Civil)

BETWEEN

MICHAEL ERIC ALEXANDER BOS MAK

Plaintiff
(Appellant)

AND

OSVALDO PATRIZZI

Defendant
(Respondent)

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Coram: Hon. Sir Derek Cons, V.P., Clough & Macdougall, JJ.A.

Date of hearing: 22 November 1991

Date of delivery of judgment: 22 November 1991

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J U D G M E N T

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Sir Derek Cons, V.P.:

1. This is an application for leave to appeal to Her Majesty in Council. The action from which it ultimately stems is – I quote frommy judgment given on 24th July this year – “failure to deliver a watch said by the statement of claim to have been sold by the defendantto the plaintiff under an oral contract concluded over the telephone on or about 17th July last year. The plaintiff, a resident ofHong Kong, is a businessman with a keen interest in rare time-pieces, both antique and new, and to some extent is a trader in thesame. The defendant, an Italian resident in Switzerland, is the chairman of the board of a company incorporated in Geneva which carrieson the business of fine arts auctioneers under the name of Habsburg S.A. He is also the managing director of its watches and clocksdepartment.”

2. The action was stayed by a master, presumably on the ground that Switzerland was a more appropriate forum. An appeal from his decisionwas dismissed by the judge below, who expressly took the same view; and on appeal to this court, all three of us again took the sameview.

3. Leave to appeal to Her Majesty in Council is asked for under Rule 2(b) of the appropriate Order in Council. This it may be grantedif, in the opinion of this court, the question involved is one which by reason of its great general or public importance or otherwiseought to be submitted to Her Majesty. The question which is said to be of that importance is “what is the standard of proof necessary,that another forum is more suitable, before a stay of proceedings on the ground of forum non conveniens can be ordered”.

4. Mr. Ching, who appears for the applicant, does not contend that the standard should be that imposed in criminal cases, but he suggeststhat nevertheless there remains the choice between prima facie and the balance of probability. Prima facie is a standard to the levelthat there is some reason to think that something may be so, whereas balance of probability is a higher degree on which the courtcan act. It is an argument that he says cannot be elaborated any further. For my part I am not able to accept that prima facie isa standard of proof at all, and for that reason I am quite satisfied that there is no question of sufficient importance to go toHer Majesty in Council.

5. Mr. Ching then falls back onto the “or otherwise” provision of the rule and argues that if he can persuade us that our decision onthe last occasion was demonstrably wrong then, there being no other way in which it can be put right, we ought, as a matter of justice,to let it go further. To that end he has taken us, admittedly very briefly, through the reasons which persuaded us last time in anattempt to show that they were ill-founded. For my part I am not so satisfied, and therefore, likewise on the “or otherwise” provision,I would not grant leave.

Clough, J.A.:

6. I agree.

Macdougall, J.A.:

7. I also agree.

(Sir Derek Cons)

(P.G. Clough)

(N. Macdoungall)

Vice President

Justice of Appeal

Justice of Appeal

Representation:

Charles Ching, Q.C., and Miss Priscilla Wong (M/s. Szeto & Yeung) for plaintiff/applicant

Ronny Tong, Q.C., and Paul Shieh (M/s. Herbert Smith) for defendant/respondent