Hofmann Klaus Wolfgang v. Asia Today Ltd

HCLA 23/2018

[2019] HKCFI 155

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO 23 OF 2018

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO 936 OF 2018)

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J U D G M E N T

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Introduction

1.This is an appeal by the claimant (“KH”) against the order of the Presiding Officer Isabella Chu of the Labour Tribunal (“Tribunal”) on 30 August 2018.  The Presiding Officer granted the application of the defendant company (“Asia Today”) to transfer KH’s claim in the Tribunal to the Court of First Instance of the High Court (“Transfer Order”). Oral reasons for her decision were delivered the same day.

2.After the Transfer Order was made, KH applied for a review.  His application was dismissed by the Presiding Officer on 18 October 2018.   KH then issued an application for leave to appeal on point of law 25 October 2018.  The Presiding Officer later handed down her written reasons on 27 November 2018 for making the Transfer Order and for dismissing the review application (“Reasons”). 

Background

3.KH is a German citizen.   In 2001, KH began working for a group of companies of which the late Mr Rainer Schultz and/or his widow Mrs Sile Schulz held a major stake and the group later became the Asia Today Group (“Group”) in 2004.   

4.Asia Today is a limited company incorporated in Hong Kong in 2004 and engages in fashion and garment trading business.  It is a member of the Group.

5.It is not disputed that in 2006, KH relocated from Germany to Hong Kong for the purposes of Asia Today’s business and that his employment with Asia Today was to commence on 1 April 2006 or so soon as could be arranged.  KH had produced a copy of a letter dated 1 June 2006 entitled “Employment Agreement” addressed to him by Asia Today and KH had signed and accepted the terms and conditions of employment stated therein (“2006 Agreement”).  The 2006 Agreement took effect upon   KH’s working visa in Hong Kong being granted on 19 August 2006 and KH was then employed as the Manager of Asia Today. 

6.On 1 March 2012, Mr Schultz was killed in an aircraft accident leaving behind Mrs Silke Schultz (“Mrs Schultz”) and their 4 dependent children, in addition to two adult daughters from a previous marriage.  Mrs Schultz became the sole director of Asia Today upon the death of Mr Schultz.  KH in the meantime remained working for Asia Today.

7.In 2013, Mrs Schulz decided to step down as director of Asia Today.  On 30 June 2014, KH was appointed a director thereof, together with 3 other directors, namely Dr Thomas Florian Gelzer, Mr Wolfgang Hubert Ansgar Damaschke and Dr Hangs Holger Dehmer.  KH was appointed as an Executive Director.  The other 3 were Non-executive Directors and they were designated as the supervisory directors (“Supervisory Board”). 

8.Subsequent thereto, there was a notarised deed executed by KH and Asia Today through their respective attorneys in Basel, Switzerland, on 12 August 2016, entitled “General Agreement on the Employment Relationship” (“General Agreement”).  The General Agreement has 3 Annexes attached, namely (i) a draft deed entitled “Employment Contract” to be executed by KH and Asia Today (Annex 1); (ii) a deed executed on 22 June 2016 entitled “Share Transfer Agreement” between two companies, Forever18 Retail GmbH, Vienna and LOGO IT LIMITED, Hong Kong (Annex 2); (iii) a deed executed on 22 June 2016 between two companies, FIRST RETAIL AG, Vienna and LOGO IT Limited, Hong Kong (Annex 3).

9.The General Agreement provides, amongst other things, as follows:

(1)  Under Clause 2, the parties are to regulate their employment relationship per the draft in Annex 1 to be executed on the same day as the General Agreement;

(2)  Upon termination of the employment relationship:

(i)  Under Clause 3, KH is prepared to sell his stake in a company called Jet IT Limited to Asia Today subject to the terms set out therein;

(ii)  Under Clause 5, KH has the right to sell his shares in the company known as Imperial Retail Software GmbH, Vienna to FIRST RETAIL AG, KH’s shares having been transferred pursuant to Annex 2 to LOGO IT LIMITED, a company related to KH, and in turn FIRST RETAIL AG has a pre-emptive right to sell the shares in Imperial Retail Software GmbH pursuant to the terms of the deed in Annex 3;

(3)  Clause 6 states that there is a separate agreement between KH and Mrs Shultz concerning their respective stakes of 20% in a company known as TAM VII Ltd and their purchase rights and pre-emptive rights;

(4)  Clause 7 states that there is a separate agreement between the then shareholder of a company known as Zuma Beach Trading Ltd UK and a company known as Shultz Ltd, Hong Kong, in which the then shareholder  has granted Shultz Ltd, Hong Kong, a call and put option for the purchase of the shares in Zuma Beach Trading Ltd, UK;

(5)  Clause 8 states that KH is willing and commits to resign from the post as co-administrator of the Estate of Mr Shultz (“Estate”) in Hong Kong at any time upon first request from Mrs Shultz and to make all necessary declarations in connection therewith;

(6)  Clause 9 states that Asia Today commits to exempt KH from all legal recourse claims, provided KH can demonstrate that the claims in question resulted from uses for the benefit of Asia Today, the Estate, or companies that are, directly or indirectly, 100% owned by Asia Today or the Estate;

(7)  Clause 10 states that Mrs Shultz is the beneficiary of two accident insurance policies taken out by Asia Today in the event of KH’s death.

10.Pursuant to Clause 2 of the General Agreement, the deed entitled “Employment Contract” was also executed by KH and Asia Today through their respective attorneys in Basel, Switzerland on the same day as the General Agreement, namely 12 August 2016 (“Employment Contract”).

11.The Employment Contract provides, amongst other things, that:

(i)  pursuant to Section II, KH is engaged as the Executive Director of Asia Today and he is in charge of the operational management of the business of Asia Today and, in consultation with the Advisory Board, in charge of the management of other companies in the Group, and in particular, this comprises finance and accounting as well as controlling, budget planning, import logistics, and allocation;

(ii)  Pursuant to Section IV, KH is not only entitled to a salary from Asia Today but additionally entitled to a bonus according to the scale set out therein and based on the EBITDA of Asia Today and of the operating retail companies;

(iii)  Further, pursuant to Section V, if KH is terminated without good cause, or if KH terminates because he is no longer able to perform the job, he should be appropriately involved in the increase of the company value and in this case, the Supervisory Board will set the severance payment in its discretion and in accordance with the provisions of German labour law, and the requirement for a severance payment is that the company value amounted to at least EUR 50m at the time of the KH’s departure;

(iv)  Pursuant to Section VII, amendments and addenda to the Employment Contract must be made in writing in order to be valid, and the agreement replaces all previous agreements between the parties and is subject to the laws of Hong Kong.

12.It is not disputed that the General Agreement and the Employment Contract governed KH’s employment relationship with Asia Today.

13.KH’s employment was terminated by Asia Today without notice on 18 December 2017.  On 29 December 2017, Asia Today paid KH the sum of HK$236,032.17, which was stated to be his salary for the period from 1 December 2017 to 18 December 2017 and his annual leave pay for 21 days.

14.It is KH’s case that Asia Today did not have grounds to terminate his employment without notice or without any payment in lieu and that his employment was wrongfully terminated by Asia Today.  Further, C did not agree that the amount paid to him by Asia Today represented all his entitlements upon termination of his employment pursuant to the Employment Contract and as a matter of Hong Kong law. 

15.KH lodged his claim against Asia Today in the Tribunal on 3 April 2018, and he claims  a total of  about HK$45,657,000 against Asia Today, being (A) damages in the sum of HK$30,698,794.52 for  breach of the implied duty of trust and confidence; (B) contractual bonus for the calendar year 2017 of HK$4,332,000; and (C) contractual severance payment of HK$8,265,000; and (D) wages in lieu of notice of HK$2,561,205.54.

16.On 18 April 2018, Asia Today filed a statement in the Labour Tribunal (“D’s Statement”) setting out its reasons for the termination of KH’s employment without notice under section 9 of the Employment Ordinance (“EO”), as follows:

(i)  KH had wilfully disobeyed lawful and reasonable orders of Asia Today under section 9(1)(a)(i) of the EO;

(ii)  KH had misconducted himself such conduct of which being inconsistent with the due and faithful discharge of his duties to Asia Today under section 9(1)(a)(ii) of EO;

(iii)  KH was found to have acted fraudulently and dishonestly against Asia Today under section 9(1)(a)(iii) of EO;

(iv)  KH was found to have breached his loyalty to Asia Today and had acted against the interests of the business of Asia Today under section 9(1)(b) of EO.

17.Then, on 21 May 2018, Asia Today issued a writ in the High Court under HCA 1192/2018 seeking against KH (1) damages for breach of contracts, statutory and/or fiduciary duties, tortious duties and/or trust duties in his capacity as an employee and/or director of Asia Today; (2) a declaration that Asia Today was entitled to, and did, summarily dismissed KH; and (3) a wide range of relief against KH  for, amongst other things, an account of profit and an injunctive relief (“High Court Action”).

18.In the proceedings before the Tribunal, Asia Today had produced to the Presiding Officer a copy of its statement of claim filed in the High Court Action (“SOC”)  wherein Asia Today pleaded particulars of KH’s misconduct, which include: (1) devising and carrying out unlawful tax evasion schemes; (2) procuring the Group to enter into transactions with JET IT Limited in which KH had a personal interest and thereby making secret profits; (3) procuring transactions to be entered into between BOAC Capital Ltd (a company which was allegedly  represented by KH  to Asia Today and Mrs Schultz  to be a member of the Group but turned out to be  beneficially by KH) and Fashion FC Club GmbH (a member of the Group) leading to substantial assets of the Group having been siphoned off; (4) unlawful attempt to divert business away from the Group; (5) Failure and/or refusal to comply with Asia Today’s resolutions hereby making secret profits; (6) Misappropriating Asia Today’s own resources for KH’s own personal benefit; (7) KH’s further breaches after his termination including refusing to return Asia Today the company’s security devices for access to internet banking of the company’s bank accounts.

19.The reliefs sought by Asia Today in the SOC include, (i) damages to be assessed; (ii) a declaration that KH holds in trust for Asia. Today for the sum to be assessed; (iii) an account of all sums received by Asia Today for profits obtained in breach of duties; (iv) further or alternatively equitable compensation for breach of duties to be assessed; (v) a declaration that Asia Today was entitled to and did summarily dismiss KH from his position as Executive Director; (vi) an order that KH is to deliver up the personal server; (vii) an order that KH is to deliver up the security devices for internet access to Asia Today’s bank accounts; and (viii) an order that KH is to procure JET IT to surrender, deliver up and transfer the Group’s Domain Names to Asia Today and/or its nominees.

20.On 7 June 2018, Asia Today made an application to the Tribunal for KH’s claim to be transferred to the Court of First Instance under section 10 of the Labour Tribunal Ordinance, Cap 25 (“LTO”). 

21.There was no order for stay of the transfer. After the Transfer Order was made and after KH’s review application was dismissed, and pending the hearing of KH’s application for leave to appeal, KH’s claim had already been transferred to the High Court and is now known as HCA 2492/2018. KH has instructed his solicitors Tanner De Witt to file a Notice to Act in the HCA 2492/2018 on 13 November 2018 and by the time KH’s application for leave to appeal was heard before this Court on 6 December 2018, Master Wong had already made various directions for filing of pleadings on 21 November 2018.  

The Reasons

22.The reasons the Presiding Officer gave for the Transfer Order were :

(i)  There was a lack of jurisdiction to adjudicate KH’s claims founded in tort;

(ii)  In any event, KH’s claim should not be determined by the Tribunal and the Presiding Officer exercised her discretion to decline jurisdiction and to transfer the claim to the High Court under section 10 of the LTO.

23.The reasons for the Presiding Officer exercising her discretion under (ii) above included the following:

(i)  If KH’s claim was not transferred, there would be two sets of proceedings carrying on in parallel on issues that are in common;

(ii)  KH’s claim involves complicated factual disputes which require a more formal and proper investigation;

(iii)  The parties have retained their own lawyers for preparation of the proceedings before the Tribunal from the outset and subsequent claims in the High Court Action and this suggests that both parties have all along realised that there are complicated legal and factual issues in their disputes and have engaged legal representations to resolve the disputes, and thus the Presiding Officer  did  not accept that the claim would be dealt with more quickly and more cost effectively in the Tribunal than in the High Court;

(iv)  Asia Today’s allegations in relation to KH’s misconduct involved 5 companies of the Group and KH’s duties were not limited to only Asia Today but other companies within the Group and there may be a need for full and extensive discovery of voluminous documents;

(v)  There may be issues of German tax law when dealing with Asia Today’s complaints that unlawful tax schemes had been devised;

(vi)  The issue of contractual severance payment claimed by KH may involve German law and expert witnesses may have to be called.

Grounds for Leave to Appeal

24.There were 6 grounds (“Grounds”) and in gist they were:

(1)  The issues in dispute are not complex and are appropriate to be dealt with in the Tribunal, and the Presiding Officer erred in holding that the factual and legal issues in dispute warranted transfer (Ground (1));

(2)  The Presiding Officer erred in holding that the calculation of items claimed by KH warranted transfer (Ground (2));

(3)  The Presiding Officer erred in holding that the fact that expert evidence may be required as to German law warranted transfer (Ground (3));

(4)  The Presiding Officer erred in holding that the large amount of the claim warranted transfer (Ground (4));

(5)  The Presiding Officer erred in holding that the parties had a right to be legally represented at the hearing and this warranted transfer (Ground (5));

(6)  The Presiding Officer erred in holding that the fact that Asia Today had filed the High Court Action warranted transfer (Ground (6)).

Discussion

Lack of jurisdiction

25.The Tribunal is created by LTO with such jurisdiction and powers conferred on it by the LTO and any other ordinance.  Section 7 of the LTO states that the Tribunal shall have jurisdiction to inquire into, hear and determine the claims specified in the Schedule of the LTO.

26.However, paragraph 3 of the Schedule states that the Tribunal shall not have jurisdiction to hear and determine a claim for a sum of money (whether liquidated or unliquidated), or otherwise in respect of a cause of action, founded in tort whether arising from a breach of contract or a breach of a duty imposed by a rule of common law or by any enactment.

27.In other words, the Schedule does not confer jurisdiction on the Tribunal to adjudicate claims founded in tort.  The Presiding Officer had referred to Estina v Golden Hand Indonesian Employment Agency, unrep, HCSA 6/2001, 21.08.2001 where Kwan J, as she then was, held that the claim concerned in that case which was based on breach of statutory duty was excluded from the jurisdiction of the Tribunal as it was a cause of action founded in tort. 

28.In Gain Hill (Hong Kong) Ltd v Li Kin Yip [2006] 4 HKLRD 186, Sakharni J had referred to the case of Citipost (Asia) Limited v Julian Robert Holliday CACV 111/2004, unrep, 08.02.2005 in which it was clearly established by the Court of Appeal in Citipost that a claim for unliquidated damages for breach of a term, whether express or implied, of a contract of employment is a claim within the exclusive jurisdiction of the Tribunal.

29.The claims in Gain Hill had included not only a claim for damages based on breach of employment contract but also, amongst others, a claim for injunctive relief and damages based on breach of confidence.  It was held by Sakhrani that the claim for breach of confidence was founded both in contract and in tort.  Sakhrani J held where there was an overlap between the claim under paragraph 1 of the Schedule on one hand and paragraph 3 on the other, such a claim would be excluded from jurisdiction of the Tribunal.

30.In the present case, the Presiding Officer was of the view that KH’s claim for damages for breach of trust and confidence was founded in contract and in tort and following Gain Hill, this claim would be excluded from the jurisdiction of the Tribunal.

31.KH had produced to the Presiding Officer a judgment of the Court of Appeal in Tadjudin Sunny and Bank of America, National Association CACV 12/2015, unrep, 20.05.16 on the issue of calculation of bonus.  However, I note in that judgment, it was said by the Court of Appeal that it is now well recognised, at least in the United Kingdom and in Hong Kong that there exists an implied obligation of mutual trust and confidence between employer and employee and that this obligation has been said to be “an overarching obligation implied by law as an incident of the contract of employment”[1].

32.In light of the above, it would appear that the duty of mutual trust and confidence is an implied term of a contract of employment, in which case KH’s claim for damages for breach of an implied term of the Employment Contract would fall within paragraph 1(a) of the Schedule.  The above issue is not amongst one of the Grounds set out by KH.

33.In any event, whether the Tribunal has jurisdiction or not, as seen below, s.10 of the LTO provides the Presiding Officer a discretion to decline jurisdiction.

The Discretion to transfer

34.Section 10(1) of the LTO provides that:

“The tribunal may, at any stage of proceedings, if it is of the opinion that for any reason the claim should not be heard and determined by it, decline jurisdiction.”

35.It is clear from what was said by the then Deputy Judge To in Murdock v Dresser-Rand Services Sarl [2002] 2 HKC 85 (at p 89) that the Tribunal may decline jurisdiction for any reason so long as it is of the opinion that the claim should not be heard and determined by it and that the Tribunal may decline jurisdiction in many circumstances in which it obviously has jurisdiction but nevertheless decides not to assume it.

36.It has also been held in Archambaud v Sino Communication Holding Limited [1982] HKC 339, HCLA 7/1982 that the Tribunal has a wide and unfettered discretion under section 10 of the LTO to decline jurisdiction.   

37.The key issue in relation to KH’s claim before the Tribunal is whether Asia Today had a good cause to terminate KH’s employment without notice.

38.KH complained that Asia Today only filed a bare defence by way of D’s Statement.  Even though D’s Statement is brief in only setting out 4 reasons which according to Asia Today justified KH’s termination without notice, its case for defence against KH in the proceedings in the Tribunal in the proceedings in the Tribunal can be gleaned from a copy of the SOC produced by Asia Today to the Presiding Officer.

39.I am of the view that the Presiding Officer was entitled to consider the allegations made by Asia Today in the SOC and those particulars set out therein. 

40.The present case is not dissimilar to the case of Harold Dean Archer v The Hong Kong Channel Ltd, unrep HCLA 12/1996 19.04.96,  where the respondent therein in resisting the claimant’s claim for arrears of salaries and other emoluments had raised the defences  that the claimant had committed serious breach of duties as the managing director and such defences went direct to the amount of the claim. As said by the late Jerome Chan J in his judgment, the nature of the dispute involved serious allegations and would not be appropriate subject matters for an informal summary form of adjudication. 

41.KH complained that the Presiding Officer failed to properly assess and consider the nature of the claims made by Asia Today in the SOC and whether those provided a bona fide defence to KH’s claim in the Tribunal.  Further, the Presiding Officer failed to properly assess and take into account the “liability exemption clause”, namely Clause 9 of the General Agreement.  Further KH’s solicitors had sent to Asia Today’s solicitors a letter dated 28 June 2018 (“C-18”) inviting Asia Today to withdraw its writ and the SOC in the High Court Action in that, amongst other things, it discloses no reasonable cause of action and/or the claims are so vaguely or insufficiently pleaded that they will prejudice embarrass, or delay the fair trial of the High Court Action.  KH’s solicitors had also served a request for further and better particulars of the SOC on 25 July 2018 in the High Court Action. 

42.Asia Today’s solicitors replied on 25 July 2018 denying KH’s allegations in C-18 but indicating that Asia Today was minded to join new plaintiffs including but not limited to 3 of those companies in the Group referred to in the SOC and that the SOC would be amended and Asia Today’s solicitors had proposed a course of actions to save costs (“C-24”).

43.Suffice to say, at the time of the hearing on 30 August 2018 in the Tribunal, the amended SOC had not yet been filed in the High Court Action.  However, those correspondences between KH’s solicitors and Asia Today’s solicitors including C-18 and C-24 had been produced by KH in the proceedings in the Tribunal.

44.Clause 9 of the General Agreement has been set out earlier in this judgment.  KH’s solicitors did not refer to Clause 9 in their C-18(1) letter.  In any event, it is not clear how Clause 9 would assist KH at this stage since it is clearly subject to the proviso stated therein. 

45.Even though there was no specific mention of those letters between the parties’ respective solicitors including C-18 and C-24 or of Clause 9, in my view, the Presiding Officer was entitled to form a prima facie view that many of those allegations in the SOC were serious allegations in the SOC and involved complicated factual disputes.

46.The Presiding Officer was entitled to form the view that the complicated factual disputes would require a more formal and proper investigation with discovery of voluminous evidence, and it was inappropriate for those serious allegations to be tried summarily in the Tribunal.

47.Further, as the Presiding Officer had pointed out, it is quite clear that Asia Today will not be able to raise its claims or to seek some of those reliefs as set out in the SOC as a set-off or counterclaim before the Tribunal and is obliged to pursue the matter in the High Court Action. 

48.The Presiding Officer has stated in paragraphs 30 and 31 of the Reasons, if KH’s claim in the Tribunal is not transferred to the High Court, there will be two sets or proceedings carrying on in parallel trying on issues that are in common and that  this is a very  undesirable situation, and further that the possibility of having two sets of trials for determining disputed facts and legal issues arising from the same set of factual evidence in two jurisdictions should not be allowed to occur so as to avoid the risk of having two inconsistent judgments.

49.I agree with the Presiding Officer’s above views. I do not find that KH’s Grounds (1) and (6) are made out.

50.In relation to Grounds (2) and (4), the Presiding Officer’s exercise of discretion was based on a number of factors and not limited to the “calculations of items” of KH’s claims or the “large amount” of the claims.  One of the issues in the “calculation of items” would appear to be the calculation of the bonus under Section IV of the Employment Contract which was stated to be based on the EBITDA of Asia Today and of the operating retail companies, and at the time of the Employment Contract, there were 3 operating retail companies.  According to KH, the bonus was ordinarily calculated and paid out in April after audit reports for the Group were completed.  However, KH’s employment was terminated in December 2018, prior to the audit reports for 2017 were completed and KH’s claim of HK$4,332,000 for bonus for 2017 is based on the average figure of the bonus amounts KH received from 2012 to 2016.  As mentioned earlier, KH had produced a copy of the Court of Appeal’s judgment in the case of Tadjudin Sunny and Bank of America, National Association on the bonus issue, namely that there being an implied term in a contract of employment not to terminate employment to avoid paying an incentive award.  The Presiding Officer was entitled to take into account the issues raised by KH in relation to the bonus and also the large amount of the claims as some of the factors in her exercise of discretion. I do not find Grounds (2) and (4) made out.

51.KH had referred to the case of Tsui Chung Fai v Kwok’s Fashion Co Ltd [2004] 4 HKC 211 and submitted that the Tribunal has jurisdiction to adjudicate matters involving issues of foreign law.  In Tsui Chung Fai, it was common ground that the contract of employment was performed outside Hong Kong and there was no dispute that the defendant/Kwok’s Fashion was a company incorporated in Hong Kong, and thus a claim for a sum of money arises from the breach of the employment agreement between the claimant and the defendant did not come within the ambit of paragraph 1(a) of the Schedule to the Labour Tribunal Ordinance.   However, as pointed out by Chu J, as she then was, the issue that arose for determination under the sole ground of appeal was whether the claimant’s claim must necessarily be a claim for a sum of money arising from the breach of an employment agreement, and that if it was  then the claim was outside the scope of paragraph 1(a) of the Schedule of the Labour Tribunal Ordinance, and the Tribunal had no jurisdiction over it, but on the other hand, if the claimant’s claim could come within the terms of the other paragraphs in the Schedule to the Labour Tribunal Ordinance, then the Labour Tribunal would  have jurisdiction to adjudicate the claim.

52.I do not know how the above judgment would assist KH in the present appeal.  In the present case, the Presiding Officer did not decline jurisdiction because the Tribunal did not have jurisdiction to adjudicate matters involving issues of foreign law.  It is not disputed that the Employment Contract is governed by Hong Kong law.  Under Section V thereof, the severance payment was to be set by the Supervisory Board at its discretion and in accordance with the provisions of German labour law.  KH had produced a copy of the German Protection Against Unfair Dismissal Act (“C-12”).  KH had relied on section 10 of C-12 to calculate the severance payment of HK$8,265,000, namely the amount shall be up to 15 months’ salary as his employment relationship with Asia Today had lasted a minimum of 15 years. However, it would appear that, even though KH was employed by the Group or the earlier group/entity in 2001, on the present evidence, KH’s employment with Asia Today only took effect on 19 August 2006, which meant he had been working for Asia Today for less than 15 years when his employment was terminated.  Further the words used was “up to 15  months’ salary”.   Thus, evidence as to German labour law or that expert witness may have to be called for the interpretation of C-12 and calculation of the severance payments. 

53.The Presiding Officer had said that the dispute in relation to the severance payments, together with other disputed issues in the present case, would not be simple issues to be tried by the Tribunal.  In my view, she was entitled to form that view.  I do not find that Ground (3) has been made out.

54.As for Ground (5), the parties had throughout retained their respective solicitors, as seen from the correspondences produced. As the Presiding Officer had said, the very fact that KH’s written submissions and correspondence were prepared by his solicitors indicated that even KH himself recognised the need for to resort to lawyers to deal with the proceedings in the Tribunal.  In my view, the Presiding Officer was entitled to come to the view that the nature and complexity of KH’s claim justified legal representation.

Conclusion

55.Having considered the Grounds, as said earlier, the Presiding Officer had a wide and unfettered discretion to decline jurisdiction under section 10 of the LTO.  In my view, her exercise of discretion cannot be said to be “plainly wrong” and she was entitled to make the Transfer Order.

56.In light of the above, KH’s application for leave to appeal is hereby dismissed.

The claimant (appellant) appeared in person