Singh Baljit v. Forward & Co. Lawyers
Read the full judgment text of HCA 552/2020 on BabelCite. This High Court CFI judgment was delivered on 13 January 2022.
1. The Plaintiff was employed by the Defendant for 2 periods. In the second period, the Plaintiff was allegedly dismissed by the Defendant without any reasons. The Plaintiff instituted this claim against the Defendant for various reliefs. The Defendant asserted that the claim was an employment claim and hence within the exclusive jurisdiction of the Labour Tribunal. The Plaintiff claimed that it was a mixed claim of employment law and tort law, with multi-issues that were not within the jurisdic
Cited by 5 cases · Cites 3 cases
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HCA 552/2020 [2022] HKCFI 153 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 552 OF 2020 ____________ BETWEEN
____________ Before: Hon Au-Yeung J in Chambers Date of Hearing: 6 January 2022 Date of Decision: 13 January 2022 _____________ D E C I S I O N _____________ Introduction 1.The Plaintiff was employed by the Defendant for 2 periods. In the second period, the Plaintiff was allegedly dismissed by the Defendant without any reasons. The Plaintiff instituted this claim against the Defendant for various reliefs. The Defendant asserted that the claim was an employment claim and hence within the exclusive jurisdiction of the Labour Tribunal. The Plaintiff claimed that it was a mixed claim of employment law and tort law, with multi-issues that were not within the jurisdiction of the Labour Tribunal. 2.Upon the application of the Defendant, Master Yee struck out the statement of claim in its entirety and dismissed that action on the ground that the claim was within the exclusive jurisdiction of the Labour Tribunal. 3.This is the Plaintiff’s appeal against the Master’s decision. This kind of appeal operates as a rehearing. The Court hears the matter afresh. 4.The summons for striking out taken out by the Defendant only mentions Order 18, rule 19 in the margin note without specifying which limb under rule 19(1) that the Defendant relies on. However, the Defendant’s supporting affirmation places reliance on rule 19(1)(a), (b) and (d), ie that the statement of claim discloses no reasonable cause of action, it is scandalous, frivolous or vexatious, and/or an abuse of the process of the Court. The grounds are that the claim is within the exclusive jurisdiction of the Labour Tribunal; there is no cause of action in tort and even if there is, the tort claims do not disclose a reasonable cause of action. Legal principles on striking out 5.Strike-out under Order 18, rule 19(1), RHC, is only used for plain and obvious cases. Disputed facts are taken in favour of the party whose pleading is the subject matter of the striking out application. Lack of jurisdiction can be a ground for striking out. Legal principles on jurisdiction of the Labour Tribunal 6.The principles have been set out in a recent decision of this Court in Woo Kwok Ping v The Incorporated Management Committee of Tsuen Wan Trade Association Primary School [2020] 1 HKLRD 717 §§17-23:
Factual background 7.The Defendant is a solicitor’s firm operated by a sole proprietor, Ms Viola Ho. She was admitted to practice in Hong Kong, Supreme Court of New South Wales and High Court of Australia. 8.The Plaintiff claims that he was registered as a Registered Foreign Lawyer by the Law Society of Hong Kong during both periods of employment with the Defendant. He had to work under the supervision of a New South Wales solicitor for 2 years as a condition for obtaining a practising certificate issued by the Law Society of New South Wales as a trainee and to be registered as a Registered Foreign Lawyer with the Law Society of Hong Kong. Ms Ho was his supervising solicitor. 9.The Plaintiff was employed by the Defendant twice without written employment contracts. The first period was from 22 January 2018 to 16 November 2018; the second from 1 March 2019 to 16 October 2019. 10.The Plaintiff’s description of the nature of his employment contract vacillates among “trainee solicitor”, “apprentice” and “supervised Registered Foreign Lawyer” contract. 11.On 16 October 2019, the Defendant terminated the Plaintiff’s second period of employment by a WhatsApp message. There were then about 8.5 months left of the Plaintiff supervision period. 12.On 8 May 2020, the Plaintiff commenced the present action. The statement of claim is a convoluted set of pleading containing relevant and irrelevant facts, evidence, submission and law. It can be broadly divided into 4 sections:
13.In the prayer for relief, the Plaintiff seeks “general”, “punitive” and “actual damages, “loss of earnings”, “loss of future earning”, which are money claims. The rest are not reliefs but descriptive phrases ie “mental anguish”, “emotional distress”, “negligent infliction of emotional distress”, “loss of opportunity”, “intentional infliction of emotional distress”, emotional suffering”, “psychological distress”. 14.The defence disputed the nature of the employment contract. The Defendant claims that the Plaintiff was a qualified solicitor admitted to practice in New South Wales. She had not terminated the Plaintiff’s employment but he had resigned. If he was terminated, it was for good cause. Analyses 15.Looking at the substance of the statement of claim, it is plain that the claim is premised on termination of employment. The core issues are (i) who terminated the employment; and (ii) if by the Defendant, whether it was for good cause. Issue (i) is on the Plaintiff, and issue (ii) is on the Defendant. If the Defendant cannot show good cause, then she has to pay salary in lieu of notice to the Plaintiff together with other appropriate statutory reliefs. The claim is within the exclusive jurisdiction of the Labour Tribunal, even if some of the damages arising from the termination are unliquidated: §17 of Woo Kwok Ping. 16.The Plaintiff contends that it is a mixed claim in both employment and tort. There are also reliefs based on statutory provisions (eg MPF, Inland Revenue Ordinance and some Australian statutes), foreign law and complex issues that are not suitable for adjudication by the Labour Tribunal. 17.For the following reasons, I reject the Plaintiff’s contentions. 18.Firstly, it is clear from the prayers that the claim is a pure money claim, which does not seek any non-monetary reliefs. 19.Secondly, a plaintiff cannot, by deploying phrases commonly used in tort in the prayer for relief, assert that he has a claim in tort. Each of those phrases, if intended to be a cause of action, must set out the relevant material facts in the body of the statement of claim. This is not done. The rambling assertions in the statement of claim purport to explain why the Plaintiff should not be terminated instead of asserting causes of action beyond wrongful dismissal. 20.Thirdly, faced with a jurisdictional challenge, the Plaintiff describes his claim to be “conjointly of tort” in §2 of his Reply. He pleads various new matters to justify those claims in tort. 21.It is trite law that a plaintiff must not put forward in his reply a new cause of action which is not raised either in the writ or the statement of claim. If the plaintiff, after seeing the defence, finds it necessary to rely on a cause of action which has not been raised in the writ or statement of claim, the proper way is to amend the writ and the statement of claim. See Hong Kong Civil Procedure 2022, Vol 1, §18/3/2, at p490. 22.It is the statement of claim that the Defendant seeks to strike-out. The statement of claim has not been amended to plead tort. 23.Fourthly, out of abundance of caution, I have considered whether some pleas might amount to claims in tort. They can be found in §§17, 19, 21, 35 and 37-39 of the statement of claim. 24.With regard to bullying and harassment:
25.With regard to breach of implied duty of trust and confidence:
26.In §§37-39 of the statement of claim, there appears to be a cause of action in negligence.
27.Looking at the substance of the statement of claim, it is plain that all the pleas are related to the claim in wrongful dismissal. There is no tort claim and even if terms usually appearing in tort claims have been used, there is no reasonable cause of action in tort. 28.In summary, this claim concerns matters within the exclusive jurisdiction of the Labour Tribunal. The Court of First Instance lacks jurisdiction and that is incurable. This is sufficient to dismiss the appeal. 29.I have read the submissions of both sides. The 82-page written submission of the Plaintiff is more convoluted and rambling than the statement of claim and seeks to defend his claims in “tort”. The contents would not affect the outcome of my decision. Conclusion and costs 30.The appeal should be dismissed. The Plaintiff conceded at the hearing that he should bear costs on dismissal of the appeal. 31.The costs should be reduced to reflect the failure of the Defendant’s solicitors in complying with §8 of PD 14.3 in lodging and serving a costs statement with the skeleton submission of counsel. Costs for gathering information and drafting the statement of costs are generally not granted: §13 of PD 14.3. I summarily assess costs of the Defendant for this appeal to be $93,000. 32.Unless the Defendant’s solicitors show cause in writing within 7 days of the handing down of this decision, the difference between the assessed costs and the amount on the costs statement is not recoverable from their client, or if already paid, should be refunded to their client. 33.I thank Mr Poon for his assistance.
The Plaintiff appeared in person Mr Jackson Poon, instructed by Yu Sun Yau Mak & Lawyers, for the Defendant | |||||||||||||||
Cases cited in this judgment