Reyes Jornalyn May Tabunar v. Yan Kam Wah and Another

HCLA 45/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO 45 OF 2015

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO LBTC 1461 OF 2014)

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JUDGMENT

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I.  INTRODUCTION

1.The claimant (“C”) was a domestic helper employed under a written contract of employment in which the 1^st defendant (“D1”) was named as the employer. C’s employment began on 23 March 2014 and was terminated on/about 16 April 2014.

2.On 16 May 2014, C commenced LBTC1461/2014 at the Labour Tribunal (“Tribunal”) against D1 for (A) wages in lieu of notice ($4,010), (B) arrears of wages ($3,233.87), (C) airticket from Hong Kong to Philippines ($800), and (D) food and travelling allowance for going back to Philippines ($100). On 28 May 2014, D1 filed his statement of defence. On 30 May 2014, D1 filed his counterclaim for (A) wages in lieu of notice ($4,010).

3.The call-over hearing was to be heard on 10 June 2014. On 27 May 2014, D1 wrote to the Tribunal for adjournment of the hearing to 11 June 2014. Such application was approved. On 9 and 10 June 2014, D1 wrote to the Tribunal for leave to have his cousin Ho Yan Ki Isabella (“Ho” or “D2”) represent him due to his ill-health and long-term residence in Mainland China. The Tribunal directed D1 to attend the hearing on 11 June 2014 with medical report.

4.D1 was absent at the hearing on 11 June 2014, but the Tribunal ordered D1 to pay $4,000 into the Tribunal as security by 16 June 2014 and such security shall be held by the Tribunal until further order. The Tribunal further adjourned C’s claim and D1’s counterclaim to hearing on 9 July 2014 for mention with cost reserved. In the afternoon of the hearing on 11 June 2014, D1 submitted a purported medical certificate in relation to his ill-health.

5.D1 was absent at the hearing on 9 July 2014. At such hearing, the Tribunal awarded judgment in the sum of $8,143.87 in favour of C against D1[1] with interest and costs, and struck out D1’s counterclaim (“1^st Award”). On 10 July 2014, C’s statement of claim was amended to reflect her change of address.

6.On 17 July 2014, D1 applied to set aside the 1^st Award pursuant to section 21A of the Labour Tribunal Ordinance Cap 25 (“Ordinance”). On 21 July 2014, the Tribunal fixed the hearing of such application on 18 August 2014, and stayed execution of the 1^st Award until determination of such application or further order upon condition that D1 paid into court as security the award sum with interest on/before 5 August 2014 (and such security shall be held by the Tribunal until further order), failing which C shall be at liberty to enforce the 1^st Award.

7.On 13 August 2014, D1 applied to adjourn the hearing on 18 August 2014 due to ill-health and medical treatment in Mainland China, and the Tribunal re-scheduled the hearing to 22 September 2014. On 21 August 2014, C’s statement of claim was re-amended to reflect C’s further change of address. On 15 September 2014, D1 wrote to the Tribunal to seek further adjournment of the hearing as he was still undergoing treatment in Mainland China. On 18 September 2014, the Tribunal refused D1’s application for adjournment. D1 renewed his request by fax, but it was refused by the Tribunal on 19 September 2014.

8.At the hearing on 22 September 2014, the Tribunal granted leave for D1 to set aside the 1^st Award and to restore his counterclaim, and C’s claim and D1’s counterclaim were adjourned for trial on 29‑30 December 2014.

9.On 10 December 2014, C applied to the Tribunal to amend her claim to add Ho as the 2^nd defendant. On 16 December 2014, the Tribunal fixed a hearing on 22 December 2014 to deal with such application. At such hearing, the Tribunal granted leave for C to add Ho as the 2^nd defendant and to re-re-amend her statement of claim, vacated the trial scheduled for 29‑30 December 2014, and adjourned the case for mention on 16 January 2015.

10.On 4 January 2015, Ho as D2 filed her statement of defence with the Tribunal. D1 wrote to apply for adjournment of the hearing on 16 January 2015 due to ill-health. On 14 January 2015, the Tribunal directed such hearing to proceed as scheduled, but D1 was excused from attending such hearing. At the hearing on 16 January 2015, the Tribunal directed that the trial be heard on 22 April 2015.

11.On 16 April 2015, D2 wrote to the Tribunal to seek adjournment of the trial. On the following day, the Tribunal refused such application. On 17 April 2015, D1 emailed the Tribunal for adjournment of the trial due to ill‑health, but the Tribunal refused such application on the same day.

12.The trial before Presiding Officer Raymund C W Chow (“PO”) took place on 22-23 April, 4 June and 10 and 13 July 2015. On 3 August 2015, the PO (a) granted judgment in favour of C against D1 and D2 jointly and severally in the sum of $4,133.87 with interest and costs,[2] (b) dismissed C’s claim against D1 and D2 for claim (A) wages in lieu of notice, (c) struck out D1’s counterclaim (A) against C for wages in lieu of notice, and (d) granted no order as to costs (“2^nd Award”).

13.On 6 August 2015, D2 applied to the Tribunal for review of the 2^nd Award (“Review Application”). At the hearing of the Review Application on 7 September 2015, the PO dismissed D2’s such application (ie the 2^nd Award was to stand) with no order as to costs (“Review Order”).

14.D1 was absent throughout the proceedings at the Tribunal as he claimed he had to remain in Mainland China due to serious ill-health and medical treatment.

15.On 2 December 2015, D2 filed an application for leave to appeal against the 2^nd Award and Review Order (“Leave Application”). On 20 January 2016, the PO handed down his written Reasons for Decision (“Reasons”).

16.The Leave Application came before me for hearing on 27 January 2016. D2 claimed she only received a copy of the Reasons on 25 January 2016, so she needed time to consider the Reasons to see if there were further grounds of appeal that she might wish to raise to support the Leave Application. On such basis, D2 sought adjournment of the hearing for the Leave Application. I granted the following order (“2016 Order”):

(a)  leave for D2 to amend the Leave Application filed on 2 December 2015 to add further intended grounds of appeal;

(b)  D2 shall file the Amended Leave Application within 14 days; and

(c)  the hearing of the Leave Application be adjourned to a date to be fixed (with 30 minutes reserved) not to be heard before 28 days thereof.

17.On 27 January 2016, instead of amending the Leave Application and filing the Amended Leave Application as required under the 2016 Order, D2 filed an affirmation setting out in red her further intended grounds of appeal (“Affirmation”). But ever since 27 January 2016, the adjourned hearing of the Leave Application had not been fixed as required by the 2016 Order. On 9 January 2017, upon review of the court file in these proceedings that revealed D2 had not fixed the adjourned hearing of the Leave Application, this court scheduled such adjourned hearing to be heard on 9 February 2017 (“Hearing”) and D2 was notified accordingly.

18.At the Hearing, this court expressed concern that the adjourned hearing of the Leave Application had not been fixed for over a year. D2 explained that (a) at the time when she filed the Affirmation she was told by court staff she should await notification of a new hearing date, and (b) she subsequently made a few telephone calls to the court and was given the same reply.

19.I do not propose to investigate the veracity of such explanation, but even on the basis of such explanation, I am not persuaded there was good reason for the delay. In my view, it behoved an applicant who wished to appeal against an adverse order to take proactive and diligent steps to bring on the hearing of an application for leave to appeal as soon as possible. D2 must have been aware of the 2016 Order that required an adjourned hearing date to be fixed. If, as D2 claimed, she did not get any satisfactory reply to her enquiries, it would have been incumbent upon her to either (a) attend court personally to press the listing clerk for a hearing date, or (b) at the very least write to the court to request for a hearing date to be fixed for her Leave Application. It was clear from the papers in LBTC1461/2014 that D2 was not shy at all about writing to the Tribunal, and in my view she could not satisfactorily explain why no attempt had been made at all to write to the court to seek an earlier hearing of the Leave Application. It was the duty of D2 as applicant to make prompt and diligent approach to the court fix a hearing date to prosecute her Leave Application.

20.Be that as it may, this court had now taken upon itself to fix the adjourned hearing of the Leave Application, and the Leave Application was heard at the Hearing on 9 February 2017.

II.  C’s CASE

21.C claimed (a) D1 was not in Hong Kong at all during her employment period from 23 March to 16 April 2014, so she served only D2 (who claimed to be a cousin of D1) and her daughter, (b) D2 was her actual employer as she never worked for D1 (which was why D2 was added as the 2^nd defendant), and (c) D2 assaulted/injured her by scratching her arm for which she later made a report to the police. C claimed (i) such assault constituted constructive dismissal (which explained why she left D2’s home), and (ii) her employment was terminated on/about 16 April 2014 with immediate effect when D2 presented her with a termination letter that she refused to sign. Hence, C claimed for wages in lieu of notice with arrears of wages, food/travelling allowance and cost of airticket.

III.  Ds’ CASE

22.D1 and D2 claimed C was employed by D1 who intended to employ C as domestic helper to take care of him when later he would come to Hong Kong for medical treatment, but C left her employment before that could happen. D2 denied she injured C as alleged. D2 claimed (a) C’s work performance was poor, (b) she was unwilling to take care of D1 and the dog, (c) she even caused damage to a chair in a hotel in Macau and the hotel agreed not to claim for compensation only after lengthy discussions and apologies. There was also allegation that C ill-treated D2’s daughter. D1/D2 claimed C left her employment on her own accord, and D1 counterclaimed against her for wages in lieu of notice ($4,010).

IV.  PO’s REASONS FOR THE 2^ND AWARD AND REVIEW ORDER

23.Issues  The 1^st issue was who was C’s employer. Since there was no dispute C was an employee, her possible employers would be (a) D1, (b) D2 or (c) D1 and D2. The PO noted that subject to D1’s counterclaim there was no dispute as to liability in respect of C’s claim (B) arrears of wages, claim (C) airticket for return to Philippines, and claim (D) food and travelling allowance for return to Philippines. For claim (A), the sub‑issues were (i) whether D2 did assault/injure C as alleged, (ii) whether it amounted to constructive dismissal, and (iii) even so, whether D1/D2 could raise a defence thereto by reason of C’s unsatisfactory performance/behaviour. On D1’s counterclaim, the PO identified the issue as whether C terminated the employment contract without notice or payment in lieu thereof.

24.Employer  According to the Reasons, C claimed she had never seen D1 and she only worked for D2 who even represented to her to be Yan Kam Wah (name of D1). The agent Ms Tang said it was D1 who contacted her for C’s employment, and she took the written contract to Macau for D1 to sign. D2 said (a) D1 was her cousin, (b) her residence belonged to her grandfather, (c) D1 wanted to receive medical treatment in Hong Kong, (d) D1 would live at her residence for such purpose, (e) D1 wished to employ C to take care of him, but (f) after C arrived she was unwilling to take care of D1.

25.The PO noted even though it was said D1 employed C to serve and take care of him, he never came to Hong Kong despite C’s arrival, and C actually served D2 and her daughter only (and D2 even brought C to Macau). D2 said C had to be trained for household chores first, but the PO took the view that as “[C] was to take care of a seriously ill patient, the usual household work should not be the most important aspect of her service”.

26.The PO further noted the description of C’s duties in the employment contract did not mention C had to take care of a sick patient who would require constant care and attention although there was mention of need to take care of dogs. Although D2 claimed when C signed the employment contract she agreed to take care of D1 (as patient) and dogs, the PO considered if that were so, there was no reason why such an important detail about taking care of D1 would be left out of the employment contract, especially when D2 gave evidence that more duties were stated in the employment contract so C could not complain when she was asked to perform those duties.

27.The PO found it strange that (as D2 alleged) C would express unwillingness to take care of D1 about 1 week after her arrival. According to D1/D2, taking care of D1 was the reason why he employed C in the first place, but despite C’s alleged unwillingness to look after him no action was taken in relation to C’s employment.

28.In all the circumstances, the PO found it hard to believe D1 was really the actual employer who employed C to take care of him. In the PO’s view, D1 employed C under his name for and on behalf of D2 only, and D2 was C’s actual employer. As for D1, he signed the employment contract for and on behalf of D2, so he fell within the definition of an employer within the meaning in section 2 of the Employment Ordinance Cap 57 as being a duly authorised agent, manager or factor of D2. The PO concluded that D1 and D2 were both liable as employers of C.

29.Constructive dismissal  According to the police record, C agreed it was an accident that D2 scratched her when D2 tried to take her daughter’s clothes, and both C and D2 agreed to settle the matter. On such basis, the PO found nothing untoward, and was unimpressed by C’s subsequent allegations that (a) she did not understand the police notebook and her English was poor, and (b) she did not mean to settle and expected the police to follow up on her complaint. The PO took the view that if C did not understand or did not agree to the contents of the statement, she should not have signed on the police notebook at all.

30.The PO was aware C sent a letter to the police to try to correct the police record, but this was only done in February 2015 long after the incident on 16 April 2014. The PO was of the view that had C intended to pursue her complaint with the police, there was no good reason why it took her so long to make such correction which happened to be only after she filed her claim at the Tribunal.

31.C was allegedly injured when D2 was picking up her daughter’s clothes. The PO found it unlikely that D2 would try to harm C when D2 was trying to pick up the clothes, and was of the view that such kind of attack was more likely to occur in the heat of argument. The PO further found that if there was a scratch, it should have been an accident rather than an assault, which would not have supported a case of constructive dismissal in any event. On such basis, the PO dismissed C’s claim (A) for wages in lieu of notice, and did not further consider the performance or behavior of C at work.

32.D1’s counterclaim  Since D1 was absent at the proceedings in the Tribunal, the PO struck off his counterclaim under section 20A of the Ordinance. Further, as only D1 and not D2 filed a counterclaim, there was no need for further consideration of the related issues.

33.Arrears of wages  According to the C’s employment contract, C’s employment commenced on her arrival on 23 March 2014, so her wages were for the period from 23 March to 16 April 2014, ie $3,233.87 (ie C’s claim (B)).

34.Food/travelling allowance  According to C’s employment contract, the food/travelling allowance for return to Philippines (ie C’s claim (D)) was $100.

35.Airticket  The employment contract provided for an airticket for return to the Philippines. No such airticket was bought or made available up to the conclusion of the trial. The quotations obtained by the parties suggested the value of an airticket ranged from $333 to $2,478. Since the employment contract did not provide that the airticket should be either of the lowest or highest value, the PO held that the value of the airticket should be a reasonable one. The PO said an airticket of the lowest value naturally came with more restraints/limitations in terms of date, luggage allowance or service, and an employer had no right to restrict the employee’s date of departure except by consent (and further allowance of time should be given as there could be possible appeal by either party). The PO concluded C was entitled to an airticket that allowed her to use on reasonable dates/terms, so it was unlikely C could make use of the airticket of the lowest value in the quotation that was in any event outdated. The PO found the claim for $800 in respect of claim (C), which was less than the average between the highest and lowest values in the quotations provided by the parties, to be a reasonable sum for an airticket in the circumstances.

36.2^nd Award  On the aforesaid basis, the PO granted the 2^nd Award.

37.Review Application/Order  D2 relied on 2 grounds of review. First, D2 put forward another quotation of $468 to dispute the value of the airticket. The PO noted the value of this quotation was even higher than that of the lowest quotation put forward at trial, so it would not have affected his considerations. But even taking into account this new quotation, the PO maintained his decision, ie the sum of $800 was reasonable value for the airticket. Secondly, D2 claimed she was entitled to wages in lieu of notice against C. The PO noted D2 did not file any counterclaim, and D1’s counterclaim was struck out, so the question of wages in lieu of notice did not arise. Consequently, the PO dismissed D2’s application for review and granted the Review Order.

V.  LEGAL PRINCIPLES

38.The onus is on an applicant to show the intended appeal has arguable grounds.[3] Whilst an appeal against a determination by the Tribunal is on point of law,[4] leave to appeal will also be granted if the determination was made without regard to relevant factors, was made without evidence, or there was failure to discharge the statutory duty to investigate and such failure has given rise to injustice, in that a fair and proper determination of the claim cannot be attained.[5]

39.But findings of fact by the Tribunal are generally immune from challenge on appeal unless they involve error of law in the sense explained in the above paragraph. Bokhary PJ in Kwong Mile Services Ltd v Commissioner of Inland Revenue said as follows:[6]

“37.  In any appeal on law only the appellate court must bear in mind what scope the circumstances provide for reasonable minds to differ as to the conclusion to be drawn from the primary facts found. If the fact-finding tribunal’s conclusion is a reasonable one, the appellate court cannot disturb that conclusion even if its own preference is for a contrary conclusion. But if the appellate court regards the contrary conclusion as the true and only reasonable one, the appellate court is duty-bound to substitute the contrary conclusion for the one reached by the fact-finding tribunal. ……”

40.In Kaifull Investments Ltd v Commissioner of Inland Revenue,[7] it was held the fact other inferences might just as plausibly be drawn from the available material was insufficient to establish that the first instance court/ tribunal acted unreasonably and had come to a conclusion that no court/ tribunal acting judicially could reasonably have made. It is only where the lower court decision exceeds the generous ambit within which reasonable disagreement is possible and is in fact plainly wrong that an appellate court is entitled to interfere.[8]

VI.  PROPOSED GROUNDS OF APPEAL

41.In addition to the proposed ground of appeal in Leave Application, D2 included 2 further proposed grounds of appeal in her Affirmation. There was no challenge as to the quantum of the PO’s award in favour of C in respect of wages in arrears (claim (B)) and food/travelling allowance (claim (D)).

42.D2’s first proposed ground of appeal was that the PO erred in saying that since the primary purpose of employing C was to take care of D1 who was seriously ill, “the usual housework should not be the most important aspect of her service” (see paragraph 25 above). D2 drew attention to her allegation/evidence that C had to be trained for household chores first before D1 (who was supposedly C’s employer) could come to Hong Kong. D2 submitted that at the material time D1 was suffering from heart condition, high blood pressure, diabetes and many other ailments, so “外傭是必須照顧起居飲食,清潔否則無人照顧D1,他怎能來香港生活及在醫院看病。[D2]亦有太多事務要做,亦要四處去是不能照顧D1,故此D1 had never come to Hong Kong, usual household煮飯,清潔亦係外傭most important aspect of her service”.

43.This proposed ground of appeal is plainly a challenge against the PO’s findings of fact that D2 was C’s actual employer, that D1 employed C under his name for and on behalf of D2 only, and that D1 and D2 were both liable as employers of C. The PO made the impugned observation as part of his consideration of the totality of the evidence in coming to the aforesaid findings of fact. It is apparent from paragraphs 24-28 above that the PO had carefully considered the circumstances of C’s employment and D1’s/D2’s allegations, and it could not be said his observation was plainly wrong in the sense as explained in paragraphs 38-40 above.

44.There was no dispute D1 never came to Hong Kong during the period from 23 March to 16 April 2014. To be fair to the PO, he was not belittling household chores generally. In the context of D2’s contention that it was D1 who employed C who was to serve him (rather than to serve D2 and her daughter), what the PO said was whereas “[C] was to take care of a seriously ill patient, the usual household work would not be the most important aspect of her service” (my emphasis). What the PO meant was C’s work must be viewed through the prism of her alleged primary duty of taking care of D1 who was said to be seriously ill, so her work would therefore be focused on D1 and not “usual household work” that one would have expected in an usual domestic household without any seriously ill patient. I am unable to see how such view taken by the PO was improper in the sense explained in paragraphs 38-40 above. There is no merit in this intended ground of appeal.

45.D2’s second proposed ground of appeal concerned the airticket. D2 pointed out that clause 7(a) of the employment contract provided that “[the] Employer shall provide the Helper …… on termination …… of this contract, free return passage to her place of origin”. D2 claimed the PO erred in rejecting the quotation from Cebu Pacific Airline for $468 that she produced for the Review Application, and in insisting that she paid the value of the airticket in the cash sum of $800. D2 submitted “本人在Cebu Pacific在網上訂購的與合約所要求例如用餐及行理托寄, 根本同一般機票無異, 但不被接納”.

46.The employment contract required the employer to provide free return passage to the helper. But the reality was that by the conclusion of the trial or even by the conclusion of the hearing of the Review Application, D2 had not yet bought or supplied any airticket for C. The PO’s award that D1 and D2 should pay the value of the airticket to C was entirely correct. As regards the value of the airticket, the PO properly acknowledged the type and value of the airticket was not specified in the employment contract. For normal uneventful termination of a helper’s employment contract, the employer and helper may agree on the type of airticket. But in the absence of such agreement, the PO was correct to say the airticket should be one of reasonable value, and I am unable to say that the PO’s acceptance of C’s claim of $800 when viewed against the range of quotations that were before the PO was flawed.

47.For this intended ground of appeal, D2 focused on the quotation by Cebu Pacific Airline in the sum of $468, and claimed the meal and luggage allowances for such ticket available for booking on the internet was no different from those for usual airtickets. But the picture of the internet booking information produced for the Review Application showed prices but not information about meal and luggage allowances. More importantly, given the proceedings at the Lands Tribunal and possible appeal (as borne out by the Leave Application), the PO’s view that an airticket should be capable of being used on reasonable dates/terms cannot be faulted. But there was no evidence (whether from the picture of the internet booking information for Cebu Pacific Airline presented for the Review Application or otherwise) as to whether the online booking information was for an open date or fixed date airticket. I find the PO had taken into account relevant matters (including the quotations put forward by D2), and his conclusion that $800 was appropriate reasonable value for claim (C) is sound.

48.D2’s third proposed ground of appeal was as follows:

“本人就D2身份諮詢[PO],結果他告知本人要經判裁結果才定是否真正D2身份。其後,本人就追討一事,到另一申請Claim No MBO788/ 2015(D),另一審裁官Mary Wu告知本人當時已是列入D2身份(在審判期間)所以當時本人應可反申索一個月代通知金。經LT審判[D1]及本人要共同共付薪金一事,本人已判D2履行僱主責任,所以本人覺得應該是可追討一個月代通知金權利。因當時是外傭即是離開工作地址,有僱傭公司及警察記事簿簽名作證。”

49.The starting point would be D2’s defence against C’s claim which was essentially an assertion that she was not C’s employer and hence not liable for any head of claim raised by C. Unlike D1 (who admitted he was C’s employer and who raised a counterclaim for wages in lieu of notice), D2 rested her case squarely on her contention that she was not C’s employer (and  challenged against C’s proof of the value of the airticket) and did not raise any counterclaim at all. D2 knew very well an essential issue in dispute in the proceedings at the Tribunal was whether or not she was C’s actual employer. Had D2 wished to do so, she could have raised a counterclaim in such proceedings by asserting in the alternative that if she was found to be C’s employer, she would claim for wages in lieu of notice. But she did not do so.

50.D2 claimed “本人就D2身份諮詢[PO],結果他告知本人要經判裁結果才定是否真正D2身份”. What the PO told her was quite correct. After all, any finding of fact that she was C’s actual employer could only be made after trial and assessment of the evidence. But this did not alter the fact that D2 could have raised a counterclaim in the proceedings before the PO had she wanted to.

51.D2 did not say precisely when “其後” she lodged “另一申請Claim No MBO788/2015(D)” for wages in lieu of notice (“Other Claim”). If it were made after the Review Order, then it would have been irrelevant to the present application. But D2 stated in the Leave Application “另一審裁官Mary Wu告知本人當時已是列入D2身份(在審判期間)所以當時本人應可反申索一個月代通知金” (my emphasis). This suggested that the other presiding officer (“Other PO”) told D2 that as she was already the 2^nd defendant in LBTC1461/2014 during the trial, and she could raise a counterclaim for wages in lieu of notice. But despite this D2 did not raise any counterclaim in LBTC1461/2014 before/at trial. Not having so raised her counterclaim, the PO had no duty to investigate any possible counterclaim that might or might not have been made by D2.

52.As D2 stated in her proposed ground of appeal, she waited until the PO granted the 2^nd Award after trial, and then “本人覺得應該是可追討一個月代通知金權利” and raised such claim only in her Review Application. Plainly, what D2 did was to rest her case on her assertion that she was not C’s employer, and it was only on adverse finding by the PO that she was C’s actual employer that she made an about face to claim for wages in lieu of notice on the premise that she was C’s employer. As the Other PO explained, D2 could have raised such counterclaim in LBTC1461/2014 on a primary or alternative basis, but D2 chose not to do so until the PO made adverse findings against her.

53.In my view, the PO was correct not to entertain such counterclaim at the Review Application as it was an abuse of process. The applicable law is well settled. Where a given matter becomes the subject of litigation in, and of adjudication by, a court/tribunal, it behoved the parties to that litigation to bring forward their whole case, and the same parties should not be permitted to open the same subject of litigation in respect of the same matter which might have been brought forward as part of the subject in contest.[9] Here, the abuse lied in the fact D2 kept her counterclaim up her sleeve, and waited until the tides turned against her (ie she was found to be C’s actual employer) before springing the counterclaim at the Review Application to vex C again even though she must have known all along it was a potential counterclaim if she was found to be C’s employer (see D1’s counterclaim against C). There was also the Other Claim and observation by the Other PO discussed above. In considering and balancing competing interests and factors herein, the PO was correct in not giving consideration to such counterclaim at the Review Application.

VII.  CONCLUSION

54.There are no merits to D2’s intended grounds of appeal. In the circumstances, D2’s Leave Application is dismissed with no order as to costs. Should D2 require translation of this Judgment into punti language, she can contact my clerk to arrange an appointment for a court interpreter to verbally translate this Judgment to her at the High Court Building at a mutually convenient time.

The 2^nd Defendant /applicant acting in person and present