SHAH MEHBOOB v. WING FUNG CONSTRUCTION (H.K.) LTD. AND ANOTHER

SHAH MEHBOOB v. WING FUNG CONSTRUCTION (H.K.) LTD. AND ANOTHER

The proviso to section 18A(2) only bars a court application where the Commissioner has in fact exercised his section 16A assessment power; there is no statutory duty on the Commissioner to assess, and therefore the applicant was not precluded from filing his section 18A application. Given the respondents denied liability, the absence of a letter before action did not make the proceedings unnecessary; accordingly the applicant is entitled to costs.

Citation
SHAH MEHBOOB v. WING FUNG CONSTRUCTION (H.K.) LTD. AND ANOTHER
Parties
Applicant: Shah Mehboob; 1st Respondent: Wing Fung Construction (H.K.) Limited; 2nd Respondent: China State Engineering Corporation
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
18 December 2002
Case Number
DCEC294/2002
Procedural Posture
Employees Compensation / Ruling
Outcome
Applicant awarded costs of the action
Legal Topics
Employees Compensation Ordinance, Costs, Jurisdiction, Section 16 a, Section 18 a
Source Language
EN
Employment Law Personal Injury Workers' Compensation Employees Compensation Ordinance Costs Jurisdiction Section 16 a Section 18 a

Case Brief

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Parties

Shah Mehboob

Applicant

Wing Fung Construction (H.K.) Limited

1st Respondent

China State Engineering Corporation

2nd Respondent

Procedural Posture

Employees Compensation / Ruling

Legal Issues

  1. 1 Whether an application under section 18A was premature because of the proviso to section 18A(2) read with section 16A
  2. 2 Whether a letter before action was a prerequisite to issuing proceedings and the consequences for costs
  3. 3 Whether the Commissioner’s assessment under section 16A is mandatory or discretionary and its effect on court jurisdiction

Ratio Decidendi

The proviso to section 18A(2) only bars a court application where the Commissioner has in fact exercised his section 16A assessment power; there is no statutory duty on the Commissioner to assess, and therefore the applicant was not precluded from filing his section 18A application. Given the respondents denied liability, the absence of a letter before action did not make the proceedings unnecessary; accordingly the applicant is entitled to costs.

Court Disposition

Applicant awarded costs of the action

Orders

  • Applicant awarded the costs of the action to be taxed if not agreed.