Hung Sang Engineering Works Ltd v. Yu Wing Fat
Read the full judgment text of CACV 4/1974 on BabelCite. This Court of Appeal judgment.
2. The facts are simple. The respondent was apprenticed to the appellant company for four years as a fitter. He claimed that he was wrongfully dismissed by the appellant and he claimed the sum of $338. The claim states that his daily wage was $13 and that he worked for 26 days a month and he was therefore claiming one month's wage in lieu of notice.
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CACV000004/1974 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO. 4 Of 1974 -----------------
Coram: Briggs, C.J., Huggins & McMullin, JJ. Date of Judgment: 21st May, 1974. ----------------- JUDGMENT ----------------- Briggs, C.J.: In my view, this appeal should be dismissed. The respondent, Yu Wing Fat, brought a claim against the appellant before the Labour Tribunal on the 14th September, 1973. The president of the Labour Tribunal transferred this claim to the District Court and this is an appeal from a decision of that Court. 2. The facts are simple. The respondent was apprenticed to the appellant company for four years as a fitter. He claimed that he was wrongfully dismissed by the appellant and he claimed the sum of $338. The claim states that his daily wage was $13 and that he worked for 26 days a month and he was therefore claiming one month's wage in lieu of notice. 3. The President of the Tribunal, in exercise of his powers under section 10 of the Labour Tribunal Ordinance declined jurisdiction and transferred the claim to the District Court at Tsuen Wan. In doing so, he gave as his reasons that having considered the facts he thought it was a case where the respondent "could claim unliquidated damages for the remaining period of his apprenticeship". He thus, in effect, was enlarging the claim of the respondent and it was on this enlarged claim that judgment was given for the respondent in the District Court for $6,000 as general damages for wrongful dismissal. 4. Section 20 of the Labour Tribunal Ordinance states that the hearing of a claim should be conducted in an informal manner. The section also states that the presiding officer shall investigate any matter which he may consider relevant to the claim whether or not it has been raised by a party. The President of the Tribunal in this case was obviously acting under this section. 5. The first ground of appeal was that the proceedings before the District Court Judge was a nullity because it was argued that the procedure laid down for civil actions in the District Court had not been complied with in that no writ had been issued. Rule 7(2) of the Labour Tribunal (General) Rules states after a claim has been transferred to the District Court "all subsequent proceedings in respect of the claim shall be taken in that court in accordance with the provisions of the Ordinance": i.e. the hearing of the claim must be conducted in an informal manner. It was suggested that this rule was ultra vires the rule-making power contained in section 45 of the Labour Tribunal Ordinance. 6. There is, in my view, no substance in this point. Section 45 says the Chief Justice may make rules "providing for matters of procedure which are not provided for in this Ordinance" and "generally for the better carrying out of the provisions of this Ordinance." In my view, rule 7(2) is well within the provisions of those powers. 7. The second ground of appeal was that the proper issue between the parties was never decided. In the proceedings in the District Court the respondent himself gave evidence and called one witness in support, and one SO Chi-kwok, who is the general supervisor with the appellant company, gave evidence on behalf of the company. The respondent gave evidence as to the circumstances of his entering into the contract of apprenticeship and of what happened when he was dismissed. Mr. So stated that he dismissed the plaintiff "because he moved from the milling department to the fitting department without my personal permission." It was argued that the real issue between the parties was not covered by the evidence given in court. I do not agree with this. I think the real issues between the parties were whether the man was wrongfully dismissed or not and, secondly, to what damages, if any, he was entitled. This was covered by the evidence though it must be admitted that Mr. So's evidence is very brief. It was suggested in argument that Mr. So who, of course, was not represented by counsel in the District Court, might not have been aware that the claim included a claim for general damages for wrongful dismissal. I do not think there is anything in this point. Mr. So was before the Labour Tribunal when that Tribunal made its order and it is clear from the evidence given by the respondent and his witness in the District court that his claim included a claim for general damages. A further point was made that Mr. So was inefficient and negligent in the manner in which the case for the respondent was conducted before the District Court. And it was urged that the Judge should have pursued such matters as to whether there were grounds for the dismissal of the respondent other than that given by Mr. So and what was his conduct like as an apprentice. I do not agree with this. Mr. So may have been careless but it was not the duty of the Judge to make out a case for him outside of the case he was making on behalf of his company. 8. Counsel for the appellant also complained of the method used by the District Court Judge to determine the amount of damages. Acting on the evidence which was presented to him as he did, I can find no fault with either the method in which the sum he awarded was reached or with the sum so awarded. So in my view I would dismiss this appeal. Representation: Bokhary (Hastings & Co.) for appellant K.H. Woo (D.L.A.) assigned for respondent. IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO.4 OF 1974 (On appeal from T.W.C.J. 451/73) -----------------
----------------- Coram: Briggs, C.J., Huggins & McMullin, JJ. Date of Judgment: 21st May, 1974. ----------------- JUDGMENT ----------------- Huggins, J.: While I agree that s.7 of the Labour Tribunal (General) Rules is not ultra vires, in the present case I am certain that justice has not been seen to be done and I am by no means sure that it has been done. 2. Section 11 of the Labour Tribunal Ordinance provides that a proceeding in the Tribunal shall be commenced by filing a claim. Under s.12 that claim must contain, inter alia, "the sum of money claimed" (which I assume was not intended to mean that the claimant must pay the money into court) and "such particulars of the claim as shall be reasonably sufficient to inform the defendant of the grounds for the claim ......". A copy of this claim has to be served on the defendant (s.13) - as one would expect in view of the purpose of the particulars. In this case the Respondent filed with the Registrar a "Form of Claim" in which he said that he claimed the sum of $338. It is conceded by counsel for the Respondent that at no time, either orally or in writing, was that Form of Claim amended and yet judgment has been entered against the Appellants in the sum of $6,000. If that judgment is supportable it is, in my view, manifestly an odd, if not an absurd, position. 3. The grounds of claim were stated to be
That wording suggests to me ...(illegible) claim under s.6 of the Employment Ordinance, such as was made by the first prayer in YIP Wan-chiu v. Magnificient Industrial Ltd. Civ. App. No. 47 of 1973. However, it is not altogether inconsistent with a claim to damages for breach of contract limited to the sum stated and I am disposed to assume that that was the intention: it was certainly treated by the District Judge as a claim to damages for breach of contract although he disregarded the limitation. The question which has given me anxiety is whether he was entitled to disregard the limitation. 4. I find no merit in the contention that the proceedings in the District Court were a nullity because the Respondent failed to take out a writ of summons. I can see no necessity for such a writ. A writ of summons is required in order to institute an action in the District Court, but there was no question here of instituting an action in that Court: an already existing proceeding was transferred to it and in my view all that was required to give the Court jurisdiction was the order of transfer. 5. Indeed, it is to the order of transfer that we must look for the key to this appeal. The substance of it was in these terms:
It appears to be common ground that the use of the plural word "claims" was due to the fact that the Labour Tribunal considered the claims of several claimants together and that there was only one claim by the present Respondent which was transferred. What was that claim? The contention of the Respondent is, in effect, that it was a dispute between the Respondent and the Appellants arising from the dismissal of the Respondent is nothing more and nothing less. If that be correct, then, of course, the learned judge could properly dispose of it by an order appropriate to whatever kind of dispute he might find existed between the parties. Counsel seeks to support this approach by reference to the general lack of formality which is to apply in proceedings under the Ordinance (s.20(1)) and in particular to the provisions of s.22(1). That subsection says
Although "presiding officer" is defined in s.2 as meaning
and does not include a judge of the District Court, it may be that a judge cannot have any less power to make orders in relation to a claim transferred to him than could a presiding officer if there had been no transfer. The order must nevertheless relate to "the claim". (There is no provision that a transferred claim shall be deemed to be an "action" within the meaning of the District Court Ordinance). 6. We have already seen that the word "claim" appears in the Order of transfer. One would have expected the word to have its ordinary English meaning, but where it is used in the Ordinance that is not (or not always) the case. Section 2 provides:
It is therefore the proceeding between the claimant and the defendant which may be transferred under s.10 and we must construe the Order of transfer accordingly. But what was the proceeding between the Respondent and the Appellants which was transferred? According to the Form of Claim as I have interpreted it it was a proceeding for the recovery of unliquidated damages for breach of a contract of apprenticeship limited to $338. The whole purpose of the Form of Claim was to inform the Defendant and the Court what it was that the Respondent sought. The presiding officer seems to have appreciated that the claim before him was limited, because we see that he said the Respondent "could claim" (not "had claimed" or "was claiming") unliquidated damages and are told he advised the Respondent to apply for legal aid in making such a claim. (Why it was not thought proper that the relevant notes of proceedings should be put before this Court I cannot understand.) In my view the presiding officer was right in thinking that there was no unlimited claim to unliquidated damages before him. It follows that I think no such claim was transferred. No such claim was subsequently lodged. It is no answer that evidence was led which was consistent with an unlimited claim to unliquidated damages. In an ordinary action irrelevant evidence may be objected to but s.20(3) requires the presiding officer "to investigate any matter which he may consider relevant to the claim, whether or not it has been raised by the parties". It is an unfortunately worded provision because it enables a presiding officer to investigate matters which may in fact not be relevant to the claim, and no objection can be taken, but it still restricts the investigation to matters which the presiding officer considers relevant to "the claim" and does not extend to matters he might consider relevant to some other proceeding which is not before him, and it does not make irrelevant matters relevant. However informal proceedings may be, in my view natural justice demands that there shall be no possibility of misunderstanding as to the claim which a defendant has to answer. That does not mean that where the original claim is put in writing any amendment must necessarily be in writing, but it does mean that any amendment must be notified in very clear terms. That was not done here. We are asked to say that the amendment should be implied from the fact that evidence relevant to an unlimited claim was admitted. That would be no way to administer justice even if this evidence had been inadmissible on the limited claim. Whether the Appellants would have conducted their case differently had they known an unlimited claim was being made against them we cannot tell: they assert that they did not know there was such a claim and nothing on the record proves the contrary. 7. Time and time again experience has shown that departures from the established procedures of the law, though they may be intended to enable tribunals to do justice quickly and cheaply, tend to result in justice's not being done at all. Legislation interfering with the established procedures should therefore be most jealously scrutinised and strictly construed. The Labour Tribunal Ordinance is no exception. Although we must conscientiously give effect to the intention of the Legislature where that is clear, we should not, unless so compelled, construe it in a way which may lead to gross injustice. The learned District Judge did not, so far as the record shows, tell the Appellants that the amendment which the presiding officer and the Tribunal Officer had suggested was being made and it was a breach of natural justice to proceed as though he had. 8. What, then, ought we to do? It is clear, in my view, that the assessment of damages cannot stand. I have some doubt whether even the issue of liability has been satisfactorily disposed of, since the papers clearly show that the Appellants had made allegations which were never investigated. The greater the informality of the proceedings the greater, as it seems to me, is the moral obligation upon the judge to ensure that no injustice results from that informality and that no relevant issue is overlooked. However, so long as the proceedings are entitled to be regarded as judicial proceedings we are compelled, under our system of law, to treat the person presiding over them as a judicial officer and not as an investigator. It would certainly have been open to the learned judge to remind the Appellants' representative that he had led no evidence in support of some of the allegations made and to question him, when in the witness-box, with a view to ascertaining whether the reasons advanced for the Respondent's dismissal did not have more substance than might appear on the surface. (In the event the witness's evidence, including his address and occupation, extends over no more than four lines of the notes). Nevertheless I must reluctantly conclude that the judge was under no legal obligation to assist the Appellants in the presentation of their case and that there is no ground upon which we could interfere with the decision on liability. 9. There is much that can be said in favour of our allowing the appeal and entering judgment for the Respondent in the sum claimed, namely $338. However, just as the Appellants may have been misled by the procedure adopted, so may the Respondent have been misled. Accordingly I think the proper course would be to allow the appeal and to order a new trial on the issue of damages. Even if a claim to unliquidated damages had been properly before the Court. I think this would have been necessary. What had to be ascertained was the difference between the wages the Respondent would have earned had there been no breach of contract and the wages he could earn, in whatever capacity, without completing his apprenticeship as a fitter. The learned judge rightly appreciated that during the contract period the Respondent was financially better off as a result of the breach. However, he seems to have calculated that the difference between the wages the Respondent would have earned as an apprentice ($13 per diem, or approximately $338 per mensem allowing for the statutory holidays) and his actual wages as a cutter (approximately $500 per mensem) was only $100 per mensem instead of $162 per mensem. In calculating the loss after the contract period he assumed that after three years from the date when the apprenticeship would normally have ended the Respondent would have ceased to earn more than he would have done had he never been an apprentice. That may be so but there was no evidence to support such a finding. In Dunk v. George Waller & Sons 1970 2 Q.B. 163 there was evidence that the plaintiff was "not very able" and that was the justification for the finding that after two years he would have been on the same wage level as men who had never served an apprenticeship. Here the learned judge expressly found that the Respondent was of average ability. I would hope that on a new trial proper enquiry would be made as to the financial benefits to be derived from a certificate of successful completion of apprenticeship as a fitter. It would also be necessary to ascertain what benefit could be expected from that part of the apprenticeship which the Respondent in fact completed, for the learned judge seems to have regarded the Respondent as "a newly qualified cutter". The evidence before us does not disclose that he had acquired any qualification as a cutter. 21st May 1974. Representation: IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO. 4 OF 1974 (ON APPEAL FROM T.W.C.J. ACTION NO. 451 OF 1973) -----------------
----------------- Coram: Full Court (Briggs, C.J., Huggins & McMullin, JJ.) Date of Judgment: 21st May, 1974. ----------------- JUDGMENT ----------------- McMullin, J.: As to the first point taken on behalf of the appellant, I find myself in full agreement with the learned Chief Justice that Rule 7(2) of the Labour Tribunal (General) Rules is within a scope of the rule-making powers conferred by Section 45 of the Ordinance. On the other hand, I must echo the misgivings of Huggins J. as to the difficulties which may arise when the Legislature seeks to establish simplified procedures for the ready and economic despatch of claims at law. More especially do these difficulties tend to arise when - as in the present case - the law seeks to provide for a hybrid procedure drawing its character from two very dissimilar sources, expediency and the Common Law. I confess that upon reflection I find myself drawn to believe that there was one aspect of Mr. Bokhary's argument relating to ultra vires which deserved more consideration than I was prepared to give it at the time he presented it in court. The suggestion was that Rule 7(2), if interpreted to the full width of the language employed therein, made so serious an inroad upon the formal procedures proper to suits both in the Supreme Court and the District Court that the Legislature in Section 45, cannot have intended to confer so wide a power. As I have said, I cannot see that that power can, upon that ground alone, be restricted to the limit which counsel suggests viz.: that it empowers no more than the making of rules to establish and regulate an appropriate machinery for transfer of cases elsewhere once the Tribunal has declined jurisdiction. I can see no reason why the "matters of procedure" referred to in paragraph (c) of Section 45 may not cover the widest innovations of procedure in the making and deciding of claims whatever tribunal may come to have seisin of a case by virtue of the provisions of the Ordinance. I am satisfied that the intention of Rule 7(2) is to implement the primary purpose of the Ordinance by providing that the hearing of a claim shall be conducted quickly and without undue formality. It would, however, be difficult to say, in view of the words used, just where the informality was intended to stop. Viewed in one way they might indeed introduce novelties of a nature fully as radical as Mr. Bokhary suggested. His catalogue of possible consequential anomalies is to my mind not to be dismissed as fanciful. Is it, for example, intended that the Rules of Evidence which, by virtue of Section 27(2), shall not apply in proceedings before a Tribunal would equally be relaxed in the superior tribunals? Although it seems unlikely that so much was to be altered it is difficult to settle upon a principle of discrimination between what necessarily must be done and what conceivably might be done to ensure that the transferred proceedings are conducted "in accordance with the provisions of the Ordinance" [Rule 7(2)]. For all that however, I agree that we must do all we can to give effect to so much of the intention of the Legislature as is beyond doubt and which I, in common with the other members of this Court, would find in the overall need to preserve informality in all proceedings which fall under the provisions of this legislation. 2. For myself I incline to the view that the claim as originally presented was rather of the nature of a claim under Section 6 of the Employment Ordinance but whether it be such or whether it be, as Huggins J. suggests, a claim for damages limited to the stated figure of $338, the fact remains that it is said to have been wholly altered as a result of what happened before the Tribunal. What it then became depends very much on what was said to the parties at the time and what they made of it; the claimant in particular. So far as the transformation of the claim is concerned, the absence of formal pleadings is not only no objection but is, presumably, in accordance with the main purpose of the Ordinance. Provided it is clear from the papers or otherwise that, upon transfer, a new form of claim is being pursued, the court of transfer can take the matter from there. It is, however, precisely at that point that the relaxed procedures may tend to frustrate the very purpose for which they were introduced i.e. simple and speedy justice. The court of transfer, as it seems to me, bears a special burden, where parties are not represented, to ensure that both sides are fully apprised of the reason for the transfer and the nature of the change in the claim - if any - which has come about. I share to some degree the misgivings of Huggins J. concerning the position both of the plaintiff and the defendant before the District Court in this case. The turn of events following the President's raising of the question of liquidated damages could well have been mystifying. Unfortunately we do not have before us the note - if there was a note - of the proceedings before the Tribunal. The reason given for the transfer discloses only that in the President's opinion the claimant could seek unliquidated damages. We are left to infer that all this was explained and that the plaintiff did decide to seek the greater remedy. It is no doubt safe to assume that he did so. What is more doubtful is whether the defendant appreciated how greatly enlarged might then become the issues with which he might be expected to deal when the matter came on for hearing in the higher court. There is nothing in the notes of proceedings before the District Court to alleviate that doubt for they show only the evidence which was taken and that was very brief. The defendant dealt only with the issue of termination and made no attempt - and apparently was not invited to make any attempt - to challenge the evidence as to damages. We are told that the plaintiff had been advised to seek legal aid and that he did not do so. We do not know whether the defendant company considered the need for professional aid in view of the altered circumstances. No doubt the defendant's representative was primarily responsible for any deficiencies in the presentation of the company's case. But this is special legislation and, although I do not say that the learned District Judge had any duty to settle issues, I would be happier if I could be sure that the defendant fully realised how necessary it was, should his story as to termination not be accepted, to deal with that part of the evidence which, if accepted, might result in the making of an award not far from twenty times as great as the amount originally claimed. While I agree with the learned President that the real issues were whether there had been a breach of contract and if so what should be the damages, there were underlying these, and especially the latter, a number of subsidiary constituent issues which are scarcely touched upon in the evidence and upon which the judgment is silent. 3. I see no reason to think that the issue of termination was not adequately dealt with. The finding that the defendant company terminated the contract without justification is amply supported by the evidence. I have come to the conclusion, however, that the finding as to damages is wholly unsatisfactory. 4. Taking his stand upon the decision in Dunk v. George Waller & Son Ltd.(1), the learned trial judge properly, as I see it, addressed himself to the task of estimating in terms of money, firstly, the degree to which the plaintiff would, in the long term, be disadvantaged by being as it were thrown upon the market without the certificate of qualification which a due performance of the contract of apprenticeship would have secured to him; secondly, the approximate duration of that disadvantage. To make this estimate it was essential to consider precisely what the contract was supposed to secure to the apprentice. I find the evidence upon this fundamental issue too cursory and confusing to afford a satisfactory basis for the very large damages awarded. I think the findings on which the award was made are to a certain degree infected by that confusion. The learned judge found that "the object of the plaintiff's apprenticeship was that he should be taught the trade of a fitter". No doubt that was the work which the plaintiff preferred but it is far from clear that this was what the defendant company had engaged to teach him. Although he said in evidence that he was "an apprentice fitter" his formal claim states only that he entered into an oral contract of employment: "to serve the defendant as apprentice (engineering workshop) - ..." upon terms which are further described and which are not in dispute. The defendant company describes itself as the "Hung Sang Engineering Works Ltd." and it appears that there are several constituent departments or sections in the workshop each directed to a different operation such as milling, grinding, fitting etc. ("Cutting" is not actually mentioned anywhere in the evidence relating to these operations.) The plaintiff worked for two years in the Milling Department before being transferred to the Fitting Department where he continued for some nine months before the dispute arose which resulted in his dismissal. He seems never to have objected to working in the Milling Department before that occasion. This might of course be explicable on the ground that it is necessary for an apprentice to work in all or most of the various departments before graduating to the Fitting Department but there was no evidence one way or the other concerning this. If, as the defendant says, the trade of fitter is quite distinct from that of cutter are we to assume that this is also true as to the operations known as milling, grinding etc. (and assuming that the operation of cutting is not included in these.) If such is the case, and if one may train as a fitter without learning the other skills - or without acquiring more than a superficial knowledge of them - why would the plaintiff continue for two years to work at a job which was not going to give him the qualification which he now says he wanted from the start? What these observations suggest is that there were several factual issues underlying the main issues which it was vital to explore and which do not seem to have been sufficiently explored. It was, to my mind, essential to ascertain what was the nature of the certificate which the plaintiff hoped to obtain. Would that certificate say that he was a fitter? A person with some training as a fitter, among other things? Would it simply certify that he had worked in the engineering workshop of the Hung Sang Company for four years as an apprentice and had proved satisfactory? The nature of this certificate as a guarantee of his experience and skill is central to his claim for damages. The plaintiff after all, although he was wrongfully dismissed, was not cast upon the market as a raw apprentice. He had had thirty-three months of training with the company and nine of those were devoted solely, it seems, to equipping him as a fitter. He could present himself for employment as a fitter and perhaps he actually did so. What was needed was evidence to show, even in the most general way, to what degree his chances of getting that work had been diminished and would continue to be diminished by his lack of the certificate. If on the other hand it was his case that without some such certificate he was unlikely ever to get employment as a fitter that should have been made clear. Also one would have expected some evidence of the market worth of a certificate from this particular factory. Yet all that appears in the record to assist in the resolution of these various questions is a statement:
It was, perhaps, this price of evidence which introduced one particular element of confusion into the judgment. In making his estimate of potential earnings lost by dismissal the learned judge contrasts the earning capacity of "newly qualified" fitters and "fully qualified" fitters with those of "newly qualified" cutters and "fully qualified" cutters. This presupposes that this particular company, (a), had a department known as the Cutting Department; (b), that certificates would be issued to persons who completed apprenticeship contracts as cutters; and (c), that the plaintiff although he had received no certificate of any sort was to be regarded in some sense as a "newly qualified" cutter at least for the purpose of deciding to what extent he had been disadvantaged by being deprived of the opportunity to become a certificated fitter. But the plaintiff's evidence was merely that he had got a job as a cutter and we do not even know whether that work has anything to do with what he had been taught in the workshop. It may be that cutting is not a constituent element of the engineering operations carried on by the defendant company at all and, since there was no evidence of the nature of the several operations which were mentioned in the course of the evidence it is impossible to hazard a guess as to whether that is likely or not. 5. It is a minor criticism of the comparison made by the trial judge in forming his estimate, that the status of a newly qnalified cutter was both obscure in itself and irrelevant to the actual status of the plaintiff; what may be of greater moment is the possibility that if there are certificated cutters then this plaintiff, on his own showing, achieved within a few weeks and without possessing any certificate a status as a cutter which, estimated in money terms, was $100 per month higher than his own stated minimum for a qualified man. If that is the true import of that part of the evidence it at least suggests the possibility that a non-certificated person with some training as a fitter might equally find employment. If this is a possibility the question as to whether the plaintiff has suffered any damages, and if so what damages, would seem to call for a fuller investigation of the market scene generally and the plaintiff's endeavour to place himself therein. 6. All of this however is by way of suggesting that the claim was too summarily dealt with on an evidential basis which was too narrow to be a fair foundation for so large an award. In Dunk's(1) case there appears to have been ample evidence. Firstly, there was evidence to show that the certificate - which the court in that case regarded likewise as central to the claim - was general in form in that it merely would have certified that the apprentice had served his full period of apprenticeship; secondly, that it was intended to cover general experience in several departments and would have certified that the apprentice had acquired with that firm a practical knowledge as an "engineering technician"; thirdly, that it was this certificate which would give an apprentice a special purchase upon the market by endowing him with a status which could be roughly quantified in terms of money. 7. I think therefore that the following matters at least should have been investigated:
Apart from these there may well be other inquiries which might suggest themselves on the hearing of the claim. 8. I would allow the appeal to the extent that the award of $6,000 should be set aside and the case remitted famere trial to the District Court upon the issue of damages only. Representation: (1) (1972) Q.H.D. 163. (1) (1972) Q.B.D. 163. |
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