L 對 陳奕民（平機會營運總裁）

Read the full judgment text of DCEO 18/2018 on BabelCite. This District Court judgment was delivered on 14 August 2019 before 徐韻華.

Civil proceedings – Discrimination – Disability Discrimination Ordinance – Mental illness – Notice of claim struck out as frivolous or vexatious – Application for leave to appeal – Whether court below erred in applying strike-out principles by failing to assume pleaded facts as true – Whether defendant breached Discrimination Proceedings Rule 9 by failing to request further and better particulars via Form 4 – Whether court below erred in assuming plaintiff could not adduce further evidence at trial – Costs – Whether costs order should be varied – Counsel's certificate – District Court Ordinance (Cap 336) s.63A(2) – Discrimination Proceedings Rules r.9. The plaintiff L, a person suffering from mental illness, brought a discrimination claim under the Disability Discrimination Ordinance against the Chief Operations Officer of the Equal Opportunities Commission (EOC), alleging that the defendant refused to investigate his complaint because of his mental disability. The court below struck out the notice of claim as disclosing no reasonable cause of action and being frivolous or vexatious, dismissed the claim and ordered the plaintiff to pay the defendant's costs. The plaintiff applied by summons for leave to appeal, variation of the costs order, and a stay of costs. Held, refusing the application. On the first issue, the court below correctly applied the principles governing the striking out of pleadings and was not required to assume the asserted causal link between the plaintiff's mental illness and any alleged less favourable treatment; the plaintiff remained obliged to plead all material facts necessary to support the cause of action, including causation. On the second issue, the defendant's failure to request further and better particulars under Rule 9 of the Discrimination Proceedings Rules did not relieve the plaintiff of his obligation to plead the material facts, and the plaintiff did not identify what further facts he would plead to establish causation. On the third issue, although the court below had regard to the special nature of discrimination litigation and applied appropriate flexibility, it correctly concluded that the pleaded facts were insufficient to support a finding of discrimination. On the costs issue, the court below was entitled to take into account that the claim as a whole was frivolous or vexatious in exercising its discretion, and the grant of a counsel's certificate was also a discretionary matter on which no error of principle was identified. The plaintiff's summons was dismissed; the plaintiff was ordered to pay the defendant's costs of the application, with a counsel's certificate granted and costs summarily assessed at HK$33,000, payable on or before 11 September 2019. Applied: Tsang Wing Kwai v Tsang Wing Fai [2018] 5 HKLRD 350, [2018] HKCA 759.

Legal issues: Whether the judge erred in applying strike-out principles by failing to assume pleaded facts as true · Whether the defendant breached Discrimination Proceedings Rule 9 by failing to seek further information via Form 4 · Whether the judge improperly assumed the plaintiff could not adduce further evidence at trial · Whether the costs order should be varied to one-quarter of the costs and without a counsel's certificate

Outcome: Leave to appeal refused; plaintiff's summons dismissed; plaintiff to pay the defendant's costs of the application.

Cited by 2 cases · Cites 1 case