Hepworth J:

This was an Originating Summons taken out by Federal Counsel on behalf of the Employees Provident Fund Board, plaintiffs, against one Goh Tiong Tan, defendant, applying for the determination of the following question :-

Whether or not the lighter workers (Taikongs and boatmen referred to in the Plaintiffs' Affidavit) are 'employees' as defined in s. 2 of the Employees Provident Fund Ordinance, 1951.

Before the Summons was fixed for hearing I indicated that in the first instance I wished to be satisfied that the procedure adopted in this case was correct and that the plaintiffs were entitled to ask for a declaration determining the question stated above. The hearing on 29 May 1957, therefore was only for the purpose of deciding whether the proceedings and what they purported to achieve were in order.

Mr Brash on behalf of the defendant argued that the proceedings were not in order because the only matters which could be brought before the Court by Originating Summons, apart from specific statutory provision, were those matters which were provided for in O. 52 and if a particular matter was not provided for in O. 52 then an Originating Summons was not thecorrect method of commencing the proceedings. Though the lighter workers referred to might be said to be employed under a contract of service, the provisions of r. 5 of O. 52 were not applicable because the plaintiffs were not parties to any such contract and the provisions of r. 5 can only be invoked where a contract is in question by the parties to the contract. Nowhere in O. 52 was provision made for proceedings such as these to be commenced by Originating Summons. O. 26 r. 5 permits the making of a declaratory judgment, but this could only apply in a matter such as this if it had been commenced by the issue of a writ. He submitted that the subject matter of this Originating Summons was not covered by O. 52 nor was any statutory provision applicable and accordingly the Court had no jurisdiction.

Mr Massie for the plaintiffs stated that he did not rely on O. 26 but was relying first of all on the provisions of rr. 13 and 14 of O. 51, and in particular to r. 14(1) (j), and also on O. 54A r. IA in the Annual Practice. He contended that from the wording of r. 13 and r. 14, and in particular r. 14(1) (j), by inference the Court had jurisdiction to hear applications by Originating Summons for the determination of any question of law. He added that the present application was not only a question of law but also a question of the construction of a statute, and it was also covered by O. 54A r. IA in the Annual Practice, it being the established practice in this Court to utilise the Annual Practice when the provisions of the local rules did not cover a particular point.

Whether or not such is the established practice of this Court, O. 54A r. IA of the Annual Practice cannot, I think, apply because in my opinion this is not a question of the construction of a statute, the definition of the word "employee" in the Employees Provident Fund Ordinance, 1951, being reasonably clear, but a question of the application of the facts of this particular case to that definition. However I think that in view of the Privy Council decision in Short v. Henderson [1946] 115 LJ (PC) 41; 62 TLT 427 174 LT 417 there can be little doubt that the question is a question of law.

Mr Massie further argued that when the Originating Summons was first issued the defendant did not object and took no steps to have it set aside. In fact the defendant entered appearance to the Originating Summons and counter affidavits were filed. He submitted therefore that the defendant had waived any right to object to the Originating Summons, and in support quoted S Rm Raman Chettiar v. Soh Bek Neo [1952] MLJ 170 which was a Court of Appeal case. In that case however the proceedings had been properly commenced by Originating Summons but there had been a procedural error after the issue of the Summons and i