Haden, Francis William v. Leighton Contractors (Asia) Ltd

DCEO 16/2018

[2020] HKDC 879

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO 16 OF 2018

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Before: His Honour Judge Leung in Chambers

Date of submissions on behalf of the respondent: 27 March 2020

Date of submissions on behalf of the claimant: 9 April 2020

Date of reply submission on behalf of the respondent: 16 April 2020

Date of Decision: 15 October 2020

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DECISION

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1.The parties have filed and served their witness statements by late November 2019. The respondent now applies for leave to adduce the supplemental statements of two of its witnesses and the witness statement of a new witness. The claimant opposes. The application scheduled to be heard on 19 March 2020 was overtaken by the general adjournment period (“GAP”) of the court business. By consent, the application is now disposed of on paper.

Background

2.The claimant (“Haden”) was employed by the respondent in 2010, and was assigned in 2016 to work as blasting manager in the construction of the Tsuen Kwan O to Lam Tin Tunnel, which was a joint venture project of the respondent (“Leighton”) and China State Construction Engineering (Hong Kong) Limited. Haden’s employment was terminated in February 2017.

3.In May 2017, Haden lodged a complaint with the Equal Opportunities Commission for discrimination on the part of Leighton against him on the ground of his race.

4.In September 2018, this action was commenced on the ground of Leighton’s breach of sections 4, 9 and 10 of the Race Discrimination Ordinance, Cap 602.

5.Pursuant to the order of HHJ Tsui on 1 August 2019, the parties were to file and exchange witness statements on or before 6 September 2019.  On the deadline, Leighton took out its summons for extension of time.  The summons was disposed of by consent dated 16 September 2019 (“the 16/9/2019 Order”) in, amongst others, the following terms:-

(1)  The time for the parties to file and exchange witness statements was extended to 14 October 2019.

(2)  If Leighton did not exchange and file witness statements by 14 October 2019, it would be debarred from doing so.

6.Pursuant to the 16/9/2019 Order, the parties filed and exchanged their witness statements on 14 October 2019.  They were Haden’s statement and the statements of Tam Lam Ching Stephen (“Tam”), Lai Chiu Nam (“Lai”) and Jan Torka (“Torka”) for Leighton.

7.For the purpose of the following case management conference (“CMC”), Leighton lodged and served its EO Questionnaire on 19 November 2019.  In the questionnaire, Leighton stated that, amongst other matters, it reserved its right to produce and rely on further witness statement(s) from the existing or from other relevant person(s), and would assist the court in this respect in the forthcoming CMC.  The other case management information provided to the court was expressly subject to such possible move of Leighton.

8.On 25 November 2019, Haden also had his supplemental witness statement made.  At the CMC on the same day, HHJ Tsui directed that the case be set down for trial.  Upon Leighton’s indication of intention to adduce further witness statements mentioned above, the learned judge further directed that Leighton took out an application for leave to do so and an application for specific discovery against Haden within 21 days.  Subject to that, no further evidence should be filed without leave of the court.  (“the 25/11/2019 Order”).

9.Pursuant to the 25/11/2019 Order, Leighton filed its summons on 16 December 2019 for leave to file and serve the witness statement of Darren Grant (“Grant”) and the supplemental statements of Tam and Torka.  Drafts of the statements were annexed to the summons[1]. On the same day, Leighton also filed its summons for specific discovery against Haden pursuant to the 25/11/2019 Order.

10.By letter dated 23 December 2019, the solicitors for Leighton sought to ascertain from Haden’s solicitors their stance after the latter’s consideration of the draft witness statements annexed to its summons.  In particular, it was pointed out that they were prepared to respond to the two witness statements of Haden, and were sought to be filed to avoid surprise at trial and to assist the court in having a full picture of Haden’s allegations and the parties’ respective narration of the facts.

11.On 23 December 2019, HHJ Tsui gave directions and adjourned the 2 summonses mentioned above for substantive argument on 19 March 2020.  In relation to Leighton’s summons for leave to adduce further witness statements, HHJ Tsui also directed Haden to inform Leighton on or before 17 January 2020 his grounds of opposition.

12.By letter dated 17 January 2020, Haden’s solicitors stated the grounds of opposition in respect of Leighton’s application to file the witness statement of Grant only.

13.Since then, the parties have managed to dispose of Leighton’s summons for specific discovery by consent, but not that for further witness statements.  In respect of the latter, the parties ensued in argument by correspondence.

14.By letter dated 18 March 2020 just before the scheduled hearing date, Haden confirmed that he would not oppose the application for leave to adduce the supplemental witness statements of Tam and Torka.  He maintains his opposition to the rest of the summons.  Essentially, Haden opposes leave to Leighton to call Grant as an additional witness.

Discussion

15.On behalf of Haden, reference is made[2] to, amongst others, §15 of Practice Direction (“PD”) SL-8, pursuant to which the parties are expected to follow the timetable laid down by the court.  Unless sufficient grounds are shown, the court will not grant extension of time for compliance.  Even if granted, extension will probably be given by way of an unless order.

16.The above direction guides the court and the parties in case managing the litigation.  They probably also set the background for the 16/9/2019 Order in the first place.  However, they do not serve to cause the court to exercise the court’s case management powers other than in accordance with the circumstances of the case.  As explained in the preamble to the PD SL-8[3], the primary function and objective of the court is the just resolution of disputes in accordance with the substantive rights of the parties, and, I say, in the circumstances of the case.

17.The focus of Haden’s opposition is that the 16/9/2019 Order was an unless order, which Leighton defaulted and the sanction set in.  Hence the debarring of Leighton from calling Grant as a witness now.  Leighton must first obtain relief against such sanction.

18.Counsel for Haden also refers to various authorities on the effect of an unless order, including Hytec Information Systems Ltd v Coventry City Council [2991] 1 WLR 1666, Daimler AG v Leiduck [2012] 3 HKLRD 119 and Lee Sai Nam v Li Shu Chung & Anor (No 2), HCA 1711/2009 (31 May 2013).  Essentially, they made it clear in default of compliance with the order, the sanction takes effect, and the party subject to that may not seek extension of time but relief from the sanction.  I see no quarrel about such principle.

19.Did Leighton default in complying with the 16/9/2019 Order?

20.As of 16 September 2019, Leighton has not been able to file and exchange its witness statements.  Pursuant to the 16/9/2019 Order, if Leighton still failed to do so by 14 October 2019, it would be debarred from calling any witness.  The 16/9/2019 Order was a time order.  Compliance with a time order is a matter of whether the party subject to it did what he was directed to do by the deadline.  Upon compliance in terms of both substance and time, the time order would be spent.  Leighton complied with the 16/9/2019 Order by filing and exchanging the witness statements of Tam, Lai and Jorka by 14 October 2019.

21.For Haden’s purpose, there must be an issue of whether Leighton’s compliance of the unless order, albeit by the deadline, is illusory or made other than in good faith: see Silver Universe Investments Ltd v China Times Securities Ltd & Ors, HCA 1824/2018 (29 March 2019) at §§18-24; Re AJK Co Ltd [2015] 6 HKC 493 at §§20-31.

22.I see no basis for suggesting that the compliance with the 16/9/2019 Order by Leighton was illusory or less than genuine or merely buying further time and opportunity to adduce its oral evidence.  This is certainly not apparent from the content of the witness statements filed by Leighton.

23.It must also be noted that pursuant to the order of the court, the parties would have sight of the evidence contained in the statements only upon their exchange.  On this basis, neither party nor the court could have perceived, or thus intended, the 16/9/2019 Order to limit the oral evidence of the parties to the single round of witness statements to be filed and exchanged.  That either or both of the parties might genuinely consider it necessary to adduce further oral evidence to address the matters raised by the other party’s witness statements should surprise neither one.  That per se does not suggest that the witness statements previously filed were nothing but illusory compliance with the order.

24.Regardless of what caused Haden to decide to drop his opposition to the present application by Leighton to adduce the supplemental statements of Tam and Torka, he would have expected no success, had he persisted in such opposition.

25.Indeed, Haden confines his complaint on Leighton’s intention to call a new witness, namely, Grant.  The effect of the 16/9/2019 Order that Haden contends is that it debars Leighton from adducing further oral evidence other than that which has been set out in the witness statements filed and exchanged by 14 October 2019.  Haden argues that Leighton should and could have decided to call Grant as a witness together with its other witnesses during the first round of the witness statements.  Allegation was even made to the effect that Leighton consciously withheld this additional witness and his oral evidence up its sleeves until now[4].

26.In the circumstances of this case, the criticism advanced by Haden is unfounded.  Grant was mentioned in a single paragraph[5] in the notice of claim in relation to an email allegedly shown to Haden in January 2017, and in the notice of response in relation to the alleged tension between Haden and his colleagues in an earlier project.  Whilst nothing prevented Leighton from including Grant as a witness in the first round for the matters arising out of such mention in the notices, nothing about its decision then not to do so, in the circumstances, could give rise to the kind of skepticism that Haden suggests.

27.The observation about the state of evidence became noticeably different after the revelation of the evidence that Haden intends to give, which contains substantial coverage concerning Grant beyond the specific reference to Grant in the notice of claim mentioned above[6]. Hence Leighton’s present application for leave to call Grant as a witness to specifically address the factual allegations of Haden concerning Grant and their circumstances at the material times.

28.Haden questions the above observation.  His solicitors[7] and counsel[8] do that by a dissecting analysis of the draft witness statement of Grant.  The theme is to demonstrate that the evidence by the draft witness statement of Grant is irrelevant, unnecessary or fails as response to the evidence of Haden.  As to that, counsel for Leighton cared to address in his submissions[9] every points taken by Haden’s solicitors about the draft witness statement of Grant.  I do not intend to set them out here.  Suffice to say that none of those taken issue of by Haden’s solicitors is such that the evidence as per Grant’s draft statement is clearly objectionable.  The evidence of Grant is relevant.  Its probative value is a matter of assessment together with the evidence from the parties as a whole.  It is not a cause for denying Leighton the opportunity of calling the witness.

29.There is no basis for any suggestion of abuse of process on the part of Leighton in its approach to adducing its intended oral evidence, in particular its decision to call Grant as a witness.  The explanation that Grant is called to respond to Haden’s evidence concerning him is not “window dressing” (as Haden’s solicitors suggested).  Leighton should be allowed to call Grant as a witness to ensure the fair resolution of the factual dispute between the parties.

30.As to the implication of allowing the present application, there can be no suggestion that allowing Leighton to call Grant as a witness will cause any irreparable prejudice to Haden.  If requested and, importantly, proved to be necessary, an opportunity may be provided to Haden to respond to the evidence of Grant.  Leighton indeed acknowledges that possibility[10].

Conclusion and order

31.I give leave to Leighton to adduce the supplemental witness statements of Tam and Torka as well as the witness statement of Grant.  Subject to the typographical correction to the witness statement of Grant as explained in §21 of the written submission of the counsel for Leighton, the statements will be as per the drafts annexed to the summons.

32.The argument between solicitors in this episode was heated.  The legal representatives of Leighton made no secret about the displeasure they feel towards what is described as tactic of Haden’s solicitors[11]. In my view, persistence in unmeritorious opposition on behalf of Haden in the circumstances of the present case was not conducive to the proper progress and fair resolution of the dispute.

33.In the circumstances, I am of the view that whilst Haden should have his costs of the application, he should pay Leighton’s costs of the application since, and including, the letter from his solicitors dated 17 January 2020 (stating his opposition), as well as the written submissions to the court.  All costs shall be taxed, if not agreed, with certificate for counsel, and payable in any event.

34.I make a costs order in the above terms, which is nisi and shall become absolute without further order of the court in the absence of application by either party in 14 days to vary.

Others

35.By his submission[12], counsel for Leighton also sought leave to file and serve further list of documents consisting of the diary notes recently disclosed by Haden upon the disposal of Leighton’s summons for discovery mentioned above.  Counsel for Haden did not address that in her submission.  Insofar as this is necessary, leave is given to Leighton to file and serve such further list of documents within 5 days.

Miss Elizabeth Herbert, instructed by Hugill & Ip, for the claimant

Mr Mike Lui, instructed by MinterEllison LLP, for the respondent