Lam Kwai Ying v. Clotheslines Garment Manufacturing Co Ltd

CACV000059/1981

Headnote

Contract of employment. Claim for unliquidated damages for wrongful dismissal. Unsuccessful plaintiff/appellant sought to argue that High Court which jurisdiction she invoked had no jurisdiction - whether jurisdiction exclusive to Labour Tribunal - whether order of dismissal with costs a nullity. Appeal dismissed as vexatious.

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Coram: Hon. Leonard, V.P., Cons & Zimmern, JJ.A.

Date of Judgment: 3rd December, 1981.

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JUDGMENT

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Leonard, V.P.:

1. This is an appeal from the judgment of Mr. Commissioner Hooper as he then was given on the 30th March 1981 whereby he dismissed the appellant's claim for damages for breach of a contract of employment. The appellant's claim was dismissed because it had been established "to a very high degree of certainty" that the appellant had solicited and accepted sums of money from respondent's workers. In the original Notice of Appeal the appellant sought an order that the judgment be set aside and that judgment be entered for her for $200,926.00 and $34,481.00 on the ground that "there is insufficient evidence to support the finding of the judge".

2. That contention was abandoned before us and counsel for the appellant candidly confessed that the purpose of the appeal was to get rid of the order as to costs on the ground that the learned Commissioner had no jurisdiction to deal with the case.

3. The appellant had prior to the institution of the proceedings in the Court below sued the respondent before the Labour Tribunal. But she had discontinued before the Labour Tribunal on the 22nd May 1980.

4. By a supplementary Notice of Appeal the appellant sought to argue that the learned Commissioner had failed to consider whether he had jurisdiction to hear the action. Counsel argued that Section 7 of the Labour Tribunal Ordinance conferred exclusive jurisdiction on the Labour Tribunal which had power to decline jurisdiction and transfer a claim to the High Court or District Court under Section 10 of that Ordinance. The appellant started and discontinued proceedings before the Labour Tribunal. She then started these proceedings and brought the respondent before the High Court. She failed on the merits and had costs awarded against her. She now seeks, without being prepared to argue that the trial judge was wrong on the merits, to persuade us that the order for costs which were occasioned throughout by her actions is a nullity because, she says, the Court whose jurisdiction she invoked, had not got jurisdiction. Needless to say she had never questioned the jurisdiction of the Court until it made the order against her.

5. This behaviour is scandalous and I do not feel called on to decide whether the Labour Tribunal had exclusive jurisdiction or any jurisdiction. Counsel has argued that Civil Appeal No. 221 of 1980, in which the Chief Justice held that a "claim for a sum of money arising from a breach of contract does not include a claim for unliquidated damages" and that he had jurisdiction to try such a claim as this, was wrongly decided. I am not satisfied that it was but would not be prepared to come to a definite conclusion about the matter until I had heard full argument in an appropriate case. This is not an appropriate case and I would dismiss the appeal as vexatious with costs.

Cons, J.A. :

6. I am in full agreement with the views expressed by my Lord the Vice-President.

Zimmer, J.A. :

7. Earl of Selborne L.C. observed in Metropolitan Bank v. Pooley⁽¹⁾ that "the power seemed to be inherent in the jurisdiction of every Court of Justice to protect itself from the abuse of its own procedure." For the reasons and on the grounds given by my Lord V.P. this is a clear example of such an abuse and I would also dismiss the appeal with costs.

Representation:

P. Chan (Day & Co.) for appellant.

F. Leung (D.W. Ling & Co.) for respondent.

(1) 10 App. Cases at 214.