Ponomarova Olena v. Master Kent Yee, Deputy Registrar of the High Court

HCAL 249/2022

[2022] HKCFI 2243

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 249 OF 2022

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Before:  Hon Coleman J in Court

Date of Hearing:  21 July 2022

Date of Decision:  26 July 2022

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D E C I S I O N

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A.  Introduction

1.The Applicant is dissatisfied with the refusal of her application for legal aid, made by her in the context of a dispute with her former employer (“Employer”).

2.That dissatisfaction has led to these proceedings, in which the Applicant seeks leave to apply for judicial review, in broad terms to quash the refusal decision made by the Director of Legal Aid (“DLA”) and the appeal decision made by Master Kent Yee.

3.At the end of the hearing on 21 July 2022, I reserved my decision. This is my Decision.

B.  Background and Context

4.The application for leave is made against the following background.

5.On 25 May 2020, the Applicant commenced proceedings against the Employer in the Labour Tribunal, in claim number LBTC 380/2020. The claim as originally formulated identified the ground for the claim as a failure to pay wages, and the amount of the claim as arrears of wages in the total sum of $231,000. In her statement in support of the claim, the Applicant stated that she had a written contract of employment entitling her to monthly remuneration of $30,000 payable at the end of each month.

6.With leave of the Labour Tribunal, the Applicant’s claim was amended to comprise two items: (A) failure to pay arrears of wages in the sum of $37,451.61, and (B) damages of $193,548.39 (calculated as $231,000 less $37,451.61). This amendment was apparently the result of the Employer agreeing to pay the arrears sum, because on 27 April 2021 the Employer was ordered by consent to settle the Applicant’s claim for arrears of wages. The settlement sum was paid on a “no blame basis”.

7.That left her damages claim to be tried. The Employer’s main defence is that the Applicant failed even to start her employment, and so was not unlawfully terminated. The main issue created seems to be as to the end date of any period of employment, so as to be able to calculate any proper amount of damages arising from any failure to pay wages and/or money in lieu of proper notice.

8.By its award/order dated 1 September 2021, the Labour Tribunal dismissed the Applicant’s attempt to add to her claim an item for an order of reinstatement. As well as directions relating to further witness statements, the Labour Tribunal also directed the remaining damages claim to be dealt with at trial on 18-20 October 2021.

9.In her statement filed for the Labour Tribunal dated 24 September 2021, the Applicant said (amongst other things):

From my understanding, basis of employment relationship – aligned goals.

I invested a lot of time and effort into the promised employment opportunity, but the proper employment opportunity was not provided to me by the employer.

I was recruited as an employee, but it later turned out that I was treated as an investor without any chance of return on my investments.

If I were supposed to bear risks together with the company owners, why was I told that I would be paid for my time and efforts on particular projects as an employee and encouraged to increase my spending.

10.The October 2021 trial date was subsequently vacated and adjourned because the Applicant applied for legal aid on 24 September 2021 (“1^st Application”). The 1^st Application was made “to sue in High Court for unlawful termination and breach of contractual obligations” by the Employer.

11.The 1^st Application was withdrawn on 12 October 2021.

12.On 8 November 2021 (but by a form dated 20 October 2021), the Applicant made another legal aid application regarding the same matter (“2^nd Application”). The 2^nd Application is the underlying application relevant for present purposes. The nature of the intended Court proceedings for which legal aid was sought was identified as “Breach of contract (Please, refer to the old case)”. In the extra information part of the application form, the Applicant expressly invited reference to her previous application for detailed information pertinent to this application.

13.The Applicant was requested to give a written response to questions about the particulars of the intended claim in the High Court. Specifically, the Applicant was asked what exactly was her intended claim, what were the basis and reasons for the claim, and what relief was intended to be sought from the High Court. In answer, the Applicant invited reference to her “old case”, and explained the calculation of the claimed damages of $193,548.39.

14.The 2^nd Application was refused by the Director of Legal Aid (“DLA”) on 3 December 2021. The grounds for the refusal were, in short, that: (1) the Labour Tribunal has exclusive jurisdiction to enquire into, hear and determine the Applicant’s claims; (2) legal aid under the Legal Aid Ordinance is not available for proceedings in the Labour Tribunal; and (3) in addition, there was no evidence to substantiate the Applicant’s allegation that she was an “investor” of the Employer.

15.The Applicant appealed against the refusal of the 2^nd Application in LAA 1185/2021. The appeal was made pursuant to section 26 of the LAO.

16.On 23 December 2021, the Labour Tribunal wrote to the Applicant with the Deputy Presiding Officer’s reply to her letter dated 14 December 2021, as follows:

With reference to your letter to this Tribunal dated 14 December 2021, it is noted that you are requesting this Tribunal to provide you with the reasons for dismissing your application to add the claim item of reinstatement on 1 September 2021 for use in your appeal against the decision of the Legal Aid Department in refusing to grant you legal aid.

Briefly, as explained in the hearing on 1 September 2021, your said application was dismissed as the relevant statutory time limit has expired. No prescribed notice under s. 32I(a) of the Employment Ordinance, Cap 57 (hereinafter referred to as “EO”), was issued and served on the Defendant. Your intended claim for reinstatement was not filed with this Tribunal within 9 months of the relevant date (s. 32I(b) of EO).

As the Defendant did not agree to submit to this Tribunal’s jurisdiction, this Tribunal accordingly does not have jurisdiction to enquire into, hear or determine your intended claim of reinstatement (s. 32J(2) of EO).

17.The legal aid appeal in LAA 1185/2021 was heard by the Deputy Registrar, Master Kent Yee, on 14 January 2022.

18.Before the hearing, a Ms Samantha Ngai, Senior Legal Aid Counsel filed a document headed “Reasons for Refusal”, which further explained the refusal of the 2^nd Application. Paragraph 6 of that document referred to Ms Ngai’s understanding that the Applicant had further alleged that “she is and/or has been in fact treated as an investor of” the Employer, and hence her claim would be outside the jurisdiction of the Labour Tribunal and fall within that of the High Court where legal representation is allowed. Ms Ngai suggested that the allegation, denied by the Employer, did not make any sense at all. The document reiterated that the Applicant’s claim is for a sum of money arising from alleged breach of an employment contract, falling within the exclusive jurisdiction of the Labour Tribunal.

19.In her own document filed in response, the Applicant wrote (in part):

If there was money, which was due to be paid to me by [the Employer] for the work done (“wages”) in September and October 2019, which the company had not paid to me until May 2020, then the simple logic suggests that if my money was withheld lawfully, it could be treated as “an investment” by the owners of [the Employer]. We do not know whether this money was being withheld by [the Employer] lawfully or unlawfully, because this amount was released to me by the Labour Tribunal after the settlement agreement signed by both parties on a “no blame basis”. (I refer to the definition of English word “investor” by the Cambridge Dictionary …)

20.In a further Note to Master, Ms Ngai noted that the Tribunal had dismissed the Applicant’s application to add the reinstatement claim for the reason that the relevant statutory time limit for filing the claim had expired. It was submitted by Ms Ngai that the mere fact that the Applicant had failed to bring her claim within the statutory time limit and that her application for adding the claim had been dismissed would not justify the intended proceedings in the High Court.

21.In her response to that Note, the Applicant expressed the hope that the point raised by Ms Ngai would receive the special attention of the Master, and a proper investigation would be conducted as to why the legal aid officers had not fulfilled their responsibilities of care to check whether the Applicant had asked the Tribunal to add the item on reinstatement to her existing claim form within the prescribed statutory time limit.

22.The hearing on 14 January 2022 was therefore conducted with the benefit of the prior exchange of written materials, as well as the oral submissions. The Master dismissed the appeal on 25 January 2022, with written reasons as follows:

TAKE NOTICE that I, following the directions set out in Nguyen Trong Son v Director of Legal Aid (LAA 20/1999, unreported, 15 December 2000) and having considered the Appellant’s case and arguments, have dismissed the appeal, as I agreed with the decision of and the reasons given by the Director of Legal Aid. My additional reasons are contained in the enclosed decision.

Additional reasons for my dismissal of the appeal:

1.  I cannot accept the allegation that the Appellant was in fact or treated as an investor of [the Employer]. The Appellant took me through the transcript of an audio recording of the conversation between Mr Lai of [the Employer] and her via WhatsApp and asserted that she was treated as an investor. This assertion is baseless and not supported by evidence. It is also contradicted by the nature of proceedings in her application form specified by her sent to the Legal Aid Department.

2.  The Appellant submits that if one works for another person without being paid, then he is treated as an investor. This submission defies logic and lacks legal basis. It must be rejected.

3.  The Appellant’s objection to Ms Chow’s appearance on behalf of Legal Aid Department at the hearing is wholly unreasonable and groundless. The Legal Aid Department has complete freedom in its choice of legal representation.

23.On 4 February 2022, the Applicant brought a claim against the Employer in the High Court, in proceedings HCA 156/2022. The claim identified in the writ is for “remedies for breach of contract by the employer and unlawful termination” on the basis that “there is no valid reason for defendant to terminate my employment contract without a notice and payment in lieu of notice was never made or offered either”.

24.On 22 April 2022, the Applicant filed her Form 86 in these proceedings. On 29 April 2022, I gave directions for an initial response and any reply, and fixed a hearing.

25.On 6 May 2022, the Labour Tribunal made an order on the application of the Applicant (as Claimant in those proceedings) for her remaining claim in Labour Tribunal to be stayed pending conclusion of HCA 156/2022, with liberty to restore.

26.Since the hearing, I have called for the Court file in HCA 156/2022, and would observe that the tail section of the Statement of Claim filed by the Applicant in that action states (capital letters and underlining as in original):

THE FOLLOWING CLAUSES OF THE EMPLOYMENT LETTER WERE BREACHED BY THE DEFENDANT:

(1)  Remuneration

(2)  Gratuitous Bonus

(3)  Annual Leave

(4)  Mandatory Provident Fund/Group Insurance Policy

(5)  Public Holidays

(6)  Termination of Employment

(7)  We look forward to establishing a long-term and amicable working relationship with you.

AND THE PLAINTIFF CLAIMS:

(1)  Certified information about previous employment normally provided to the employee in Hong Kong, when the employment contract is terminated lawfully (i.e. employment period, position and reason for termination);

(2)  Damages for breach of contract and unlawful termination as the Court may deem fit;

(3)  Costs;

(4)  Such further and/or other reliefs as the Court may deem fit.

27.I also observe that an Amended Statement of Claim was filed on 16 May 2022 (pursuant to RHC Order 20 rule 3), which amongst other things amended the second paragraph of the prayer for relief so that it now reads (with the amendment shown for present purposes in italics):

(2)  Damages for breach of employment contract and unlawful termination, as well as damages to my reputation caused in tort as the Court may deem fit;

28.Obviously, as a matter of chronology, that amendment was made long after the DLA’s refusal of the 2^nd Application and the Master’s dismissal of the legal aid appeal, the subject of the present intended challenge.

29.On 27 May 2022, the Applicant made another legal aid application to continue HCA 156/2022 (“3^rd Application”). The 3^rd Application was refused by the DLA, notified in a letter dated 7 July 2022, but the Applicant says she received it only on 13 July 2022.

30.Though the 3^rd Application and its refusal are strictly irrelevant to the present proceedings, I will touch on them below as the Applicant sought to make some use of them – and she posed various questions about how she might deal with any complaint that she has about that refusal.

31.Also on 27 May 2022, the Applicant made a further legal aid application for these intended judicial review proceedings. Notice of the application was provided to the Court on 30 May 2022. As a result, the automatic stay of these proceedings for 42 days commenced.

32.On 20 June 2022, the Department of Justice (“DOJ”) acting for the DLA wrote to the Court to suggest that, in light of the stay, the time within which the DLA might file the initial response be extended from 30 June 2022 to 11 August 2022 and that the oral hearing of the application for leave to apply for judicial review fixed for 21 July 2020 to be vacated and adjourned to a later date after 11 August 2022.

33.On 22 June 2022, the Applicant wrote to the Court pointing out that the DOJ had not provided any justification for the requested stay of proceedings, and that the maxim “justice delayed is justice denied” was already a sad fact of reality in her case. The Applicant asked why the hearing scheduled for 21 July 2022 needed to be delayed, as it was supposed to clarify whether she had an arguable case, so that leave to apply for judicial review be granted.

34.In my directions dated 23 June 2022, I observed that the stay had been automatically created by the application for legal aid, and it was not correct that the DLA had requested a stay or any delay in the proceedings. However, as the stay was mainly for the potential benefit of the Applicant, who said she did not want it, the stay could be lifted by the Court. In those circumstances I lifted the stay and ordered that my previous directions were to stand.

35.At the hearing, having sought her clarification, the Applicant confirmed to me that she was content for her application to be dealt with on the day (apparently partly on the basis that she thought legal aid would be rejected anyway).

C.  Grounds of Intended Review

36.On 22 April 2022, the Applicant filed her Form 86 in these proceedings, identifying the Master’s decision as the decision in respect of which relief is sought. Therefore, the Master is named as the putative respondent and the DLA as the putative interested party.

37.Other than costs, the relief sought in the Form 86 is: (1) to quash the decision by the Master to dismiss the appeal; (2) to quash the unlawful underlying decision by the Officers of the Legal Aid Department; and (3) a declaration with regard to statements by the Master in his additional reasons.

38.On the additional pages attached to the Form 86, the Applicant also identifies that she is asking for (1) an oral hearing and the grant of leave to apply for judicial review; (2) a declaration with regard to her right to share the audio recording of the appeal hearing with the persons who will assist in preparations for the judicial review; and (3) a waiver of the transcript-processing fees.

39.Those last two points arose because the Applicant had applied for the audio recording of the appeal hearing, and had been informed that there was a fee for any transcription, and that provision of the audio recording would be against an undertaking not to use it for any other purpose. I also note that in the context of the application for legal aid in these proceedings, to assist in the consideration of the application, the legal aid officer had asked the Court for the audio or transcript, but that it had not yet been received.

40.In order to obtain leave to apply for judicial review, the Applicant needs to identify grounds of review which have a reasonably arguable prospect of success. But, it is fair to say – and the Applicant accepted – that the narrative attachment to the Form 86 does not readily identify any proper ground in support of the application. Certainly there is no clear and succinct statement of the grounds upon which the claimed relief is sought.

41.In correspondence, the Applicant suggested that she might amend her Form 86, but no proposed amendment was provided. Nevertheless, at the hearing, on my invitation, the Applicant sought to identify and enumerate her grounds as follows:

(1)  the Master disregarded relevant facts, and concentrated instead on irrelevant considerations, and in particular the question as to whether the Applicant was an “investor” in the Employer;

(2)  there was a failure in due process, including that the Master failed to ask any questions of the representative for the DLA (not Ms Ngai), who was not sufficiently familiar with the papers in the case (as she apparently self-confessed), which confirmed the Applicant’s concerns that the Master was prejudiced;

(3)  there was a failure by the Master to give adequate reasons for his decision; and

(4)  the Applicant’s right of access to justice was violated.

42.I will consider the merits of those suggested grounds.

D.  Whether underlying decision of DLA amenable to review

43.But it is first convenient to deal with a discrete point as to whether the underlying decision of the DLA refusing the 2^nd Application is amenable to judicial review. The simple answer is that it is not.

44.There are different tests to be applied (1) when the DLA/Master is considering an application/appeal for legal aid and (2) when the Court is considering an application for judicial review of a decision refusing to grant legal aid. If authority is needed for such a proposition, reference can be made to Xu Fangwen v Deputy Registrar of the High Court [2019] HKCFI 2332 at §§17-20.

45.The starting point is that, under section 10(3) of the LAO, a person shall not be granted legal aid certificate in connection with any proceedings unless he or she shows reasonable grounds for taking, defending, opposing or continuing such proceedings.

46.A legal aid appeal to the Master is in the nature of a de novo hearing. It does not take the form of a review of the decision of the DLA, and the question is not whether the DLA made a decision which was reasonably open to be made on the materials. The Master is deciding whether, in his view on the materials before him, legal aid should be granted. Therefore, when hearing an appeal against the decision of the DLA refusing to grant legal aid, the Master should adopt the same approach.

47.But the question to be answered by the Court when considering an application for leave to apply for judicial review of the Master’s decision dismissing a legal aid appeal is a different one. The Court does not sit as a further tier of appeal, and does not re-examine the Master’s decision afresh, or consider whether it would have granted legal aid to the applicant. The Court’s function is confined to a review of the legality, rationality and fairness of the process, so as to determine whether the intended application for judicial review is reasonably arguable and has a realistic prospect of success.

48.Further, as the appeal to the Master under section 26 of the LAO is a full appeal, as described above, where the applicant for legal aid has exercised the statutory right of appeal against the DLA’s decision, it follows that the underlying DLA’s decision is in principle not amenable to judicial review: see the Xu Fangwen case at §§ 21-22, adopting by analogy the reasoning of the Court of Appeal in Re Moshin Ali [2018] HKCA 549.

49.I will return later to the hypothetical circumstances where a decision of the DLA to refuse an application for legal aid is not made the subject of an appeal under section 26.

E.  Merits of Intended Grounds of Review

E.1  Whether the Master disregarded relevant facts, and concentrated instead on irrelevant considerations

50.The Applicant says that during the hearing on 14 January 2022, the Master put all his efforts and attention on a single item, namely to secure an excuse for rejection of her application by shifting focus from the main issue (as she put it, whether all or part of her claim for unlawful termination should be heard by the Height Court) to the minor unrelated issue (as she put it, the use of a word “investor” in a statement to the Labour Tribunal in a different case). The Applicant says the Master kept repeating the same question, and pushing her to state particular pages or phrases in the transcript of the WhatsApp call between her and Mr Lai on 24 June 2020 which showed her to be an investor.

51.The Applicant also says that the Master ignored her written and oral explanation about the context and irrelevance to her intended claim of her phrase “treated as an investor without any chance of return on my investment”, which she said could perhaps less elegantly but more accurately be stated as “victim of a fraud”. The Applicant says that, in his later Reasons, the Master failed to mention the context from which the extracted word “investor” came, and chose to ignore the fact that the damages claim in the Labour Tribunal does not cover remedies for unlawful termination but only for unpaid wages.

52.With respect, I think the criticism of the Master in this regard is both unfair and misplaced. The starting point of the relevant consideration was that the 2^nd Application was made to seek legal aid to pursue a claim in the High Court against the Employer for “breach of contract”. The only relevant contract was the contract of employment, in relation to which the Applicant was already claiming arrears of wages and/or damages in the Labour Tribunal.

53.It is trite that such a claim – and a claim for remedies for dismissal and an order for reinstatement – fall within the exclusive jurisdiction of the Labour Tribunal:

(1)  Section 7(1) of the Labour Tribunal Ordinance Cap 25 (“LTO”) provides that the Labour Tribunal shall have jurisdiction to enquire into, hear and determine the claims specified in the Schedule;

(2)  Section 7(2) of the LTO provides that save as is provided in the LTO, no claim within the jurisdiction of the Labour Tribunal shall be actionable in any court in Hong Kong (though under section 10 the tribunal may, at any stage of proceedings, if it is of the opinion that for any reason the claim should not be heard and determined by it, decline jurisdiction and transfer the matter to the District Court or High Court or Small Claims Tribunal);

(3)  a claim for arrears of wages falls under paragraph 1 of the Schedule;

(4)  a claim for remedies for dismissal and for an order for reinstatement falls under paragraph 7 of the Schedule.

54.It would, therefore, have been obvious to the Master that insofar as the claims made or intended to be made by the Applicant arose out of the contract of employment, those claims fell within the exclusive jurisdiction of the Labour Tribunal, for which the grant of legal aid is not available under the LAO. If, therefore, the Applicant were to be granted legal aid, it would have to be for a different form of claim not caught within the exclusive jurisdiction of the Labour Tribunal. In those circumstances, it would be perfectly understandable – and ought not to be a matter leading to complaint – that the Master would investigate the suggestion that there might have been some other form of claim.

55.I accept that the Applicant may have been trying to explain to the Master that her claim was not based upon her in fact being an “investor”, but that she had used the word in an analogy to identify that she had been kept out of money to which she was otherwise entitled – it might be said “cheated” or (as she put it in her Form 86) “victim of a fraud”. But if it is no part of her case that she was in fact an “investor”, then the refusal of legal aid on the basis that there was no sufficient arguable case that she was in fact an investor is of no import.

56.To test what the Applicant meant by her reference to “investor” and to see if there was any basis for that as might identify a claim for which legal aid might lie, was not reasonably arguably a procedural impropriety.

57.Nor is there any reasonably arguable basis to suggest that the Master failed to take into account any relevant matters, or to suggest that he had not thoroughly considered the Applicant’s case and arguments (where his decision records that he had).

E.2  Whether there was a failure in due process

58.In the legal aid appeal before the Master – as in the original application for legal aid determined by the DLA – it fell to the Applicant to show reasonable grounds for taking the intended proceedings described by her in the 2^nd Application.

59.Again against the trite proposition that a claim arising out of the contract of employment would fall within the exclusive jurisdiction of the Labour Tribunal, it might be expected that most questions posed by the Master would be posed to the Applicant, rather than to the representative for the DLA, Ms Chow.

60.Nor – contrary to the effect of the submission of the Applicant – do I think it is reasonably arguable that it was incumbent on the Master to interrogate the representative for the DLA as to what steps had been taken by the Legal Aid Department to investigate the circumstances of the Applicant’s existing claim in the Labour Tribunal or the intended claim in the High Court. The Applicant was well able to have identified to the Master those matters which she would say were relevant (and those which she would say were irrelevant) to the overall assessment as to the grant or refusal of legal aid. The Applicant wrote various written submissions, and was given the opportunity to make oral submissions.

61.It may be correct that the representative for the DLA (who was not Ms Ngai, nor any of the other officers who appear to have had more direct involvement with the Applicant’s applications, but Ms Chow) lacked sufficient familiarity to be able to provide full assistance to the Master were he to have asked questions of her, but that does not seem to me to identify that the Master was not able to consider those matters relevant to his decision, nor does it arguably suggest that the Master was prejudiced against the Applicant. The Applicant’s expression of “regret” as to the choice of representative for the DLA at the appeal hearing does not raise any public law ground for judicial review.

62.One of the criticisms raised by the Applicant against the Legal Aid Department is that there was a failure to have made enquiries with the Labour Tribunal as to whether the Applicant had in fact failed to bring her claim for reinstatement within the statutory time limit. I think this criticism is misplaced. Indeed, as the letter provided by the Labour Tribunal subsequently has made clear – which letter was specifically sought by the Applicant for the purposes of putting it before the Master on the legal aid appeal from the refusal of the 2^nd Application – the Labour Tribunal was plainly of the view that the attempt to bring the claim for reinstatement fell outside the statutory time limit.

63.In this regard, claims under Part VIA of the Employment Ordinance Cap 57 (“EO”) – which covers claims arising from dismissal, including a claim to reinstatement – are expressly within the exclusive jurisdiction of the Labour Tribunal: see sections 32I and 32J(1) of the EO and paragraph 7 of the Schedule to the LTO. This is so as long as the claim is brought within the statutory time limit of 9 months from the relevant date in respect of which that claim falls (unless the parties to the claim have provided written agreement that the Tribunal should have jurisdiction – which did not happen on the facts of this case): see section 32J(2) of the EO.

64.However, that the Labour Tribunal does not have jurisdiction because the claim is brought outside the statutory time limit does not mean that the jurisdiction to determine that claim somehow rests with the High Court (or District Court). Rather, apart from following a transfer by the Labour Tribunal to the High Court of a claim over which the Labour Tribunal does have jurisdiction made, the High Court does not have jurisdiction over a claim under Part VIA: see section 32J(3)-(5) of the EO.

65.If, as appears to be the case, the Applicant thinks that the Labour Tribunal made an error of law in its determination refusing her to add a claim to reinstatement, the relevant avenue to seek redress would have been by seeking a review or leave to appeal from that decision: see sections 31 and 32 of the LTO.

66.The Applicant says that the Master’s approach as regards his questions on the “investor” (see above) also identify his disregard to impartiality and fairness. For reasons which I have already given, I do not think that is reasonably arguable. Nor do I think there is any other reasonably arguable complaint about a failure of due process.

E.3  Whether adequate reasons were given

67.It is correct that the Master’s reasons for his decision were brief. Essentially, the reasons fell into two parts: (1) his agreement with the reasoning of the DLA in the DLA’s refusal of the 2^nd Application, and (2) the additional reasons relating to (a) the point about “investor” and (b) the objection to Ms Chow’s appearance on behalf of the Legal Aid Department.

68.It is settled law that the adequacy of reasons for a decision depends on the context. There is no general duty on the part of a Master to address every single issue (whether of fact or law) raised by any party. In this case, the context was relatively simple and straightforward. The Applicant was seeking legal aid to pursue her intended claim, identified as a claim in breach of the contract between herself and the Employer. In rejecting the 2^nd Application, the DLA had given clear and succinct reasons for that rejection, in particular that the intended claim fell within the exclusive jurisdiction of the Labour Tribunal, so that it was not reasonable to commence proceedings in the High Court. By the Master’s statement that he agreed with both the decision and the reasons given by the DLA, he perfectly adequately identified the reasons for his own decision (to which he also added additional reasons on the other two points).

69.Put another way, it is not reasonably arguable that the Applicant did not know from the Master’s decision the basis of the decision to refuse legal aid for the intended High Court claim.

70.I do not think it is reasonably arguable that there was a failure by the Master to give adequate reasons for his decision.

E.4  Whether the access to justice was denied

71.The legislature has determined that certain types of claim fall within the exclusive jurisdiction of the Labour Tribunal, meaning that those types of claim must be brought in the Labour Tribunal (though there also exists the power of the tribunal to decline jurisdiction for any reason and to transfer the case to, say, the High Court).

72.The ability to bring a claim in a tribunal which has exclusive jurisdiction to hear and determine that claim clearly provides access to justice in relation to that claim.

73.The legislature has also determined that legal aid cannot be granted for proceedings in the Labour Tribunal.

74.But, the inability to obtain legal aid in proceedings in the Labour Tribunal does not seem to me to be reasonably arguable as a violation of the Applicant’s right of access to justice.

E.5  Merits Overall

75.In light of the above, I do not think any of the intended grounds of review are reasonably arguable with any reasonable prospect of success.

F.  Additional Matters

76.I have already referred to the facts that (1) the Applicant made the 3^rd Application for legal aid, for the purposes of continuing her by then commenced High Court action in HCA 156/2022, and (2) during the pendency of these judicial review proceedings, the 3^rd Application was refused by the DLA’s letter of 7 July 2022 (which the Applicant says was received by her only on 13 July 2022).

77.In those circumstances, the Applicant described that as a change of circumstances and sought to add some challenge to that refusal within these proceedings. That was procedurally inappropriate, and I did not permit it.

78.But the Applicant pointed to her potential dilemma in that:

(1)  Her dissatisfaction with the refusal of the 3^rd Application might be taken on an appeal, the possibility of which she enjoys as of right under section 26 of the LAO. But, if she were to appeal, that would render the DLA’s refusal not amenable to judicial review.

(2)  If, on the other hand, she were to choose not to exercise the right of appeal, the DLA would no doubt argue that the DLA’s refusal of the 3^rd Application was nevertheless not amenable to judicial review, because the Applicant had failed to exhaust her alternative remedy by an appeal.

79.In effect, the Applicant invited me to advise as to which course of action she might take. But, it is plainly not the role of the Court to give legal advice, nor in general to decide academic or hypothetical matters. It seems to me that it is a matter for the Applicant as to whether she chooses to seek some form of judicial review of the DLA’s refusal of the 3^rd Application or to appeal that refusal to the Master as is her right (or both).

80.However, in so far as it might be thought helpful for general purposes, I might offer the following observations:

(1)  As I have already found (see above), the exercise of the right to appeal to the Master from the DLA’s refusal of an application for legal aid will ordinarily, and in principle, render the underlying refusal not amenable to judicial review.

(2)  As explained, this is in part because the appeal is a full appeal dealt with on a de novo basis. If the applicant for legal aid considers that the DLA has made some procedural error by failing to take something into account which should have been taken into account, or by taking into something into account which should not have been taken into account, those matters can be identified to the Master on the argument on the appeal.

(3)  Similarly, if such procedural errors are said to have arisen from some general or systemic unfairness or failure in the decision-making process of the application for legal aid, that would ordinarily be capable of cure on the appeal, by identifying to the Master those matters which ought to have been taken into account, or not taken into account, and so forth. The particular reason why there may have been a failure at the level of the decision of the DLA does not matter, where that failure can be cured by a decision on the merits of the application for legal aid dealt with by the Master looking at all matters afresh on the full appeal.

(4)  It is difficult to conceive of any circumstances where a failure in process at the level of the DLA’s decision is such as could not be cured on the full appeal.

(5)  An attempt to seek leave to apply for judicial review of the DLA’s refusal of an application for legal aid, where the right to seek redress on appeal is not exercised, would ordinarily be refused on the basis that it is either premature or that there has been a failure to exhaust an available alternative remedy.

81.A different – perhaps systemic – concern about the process of making and determining applications for legal aid, which would have no relevance to or impact on the grant or refusal of legal aid, would not be sought to be addressed through an application for leave to appeal in relation only to a specific individual application for legal aid.

82.The Applicant also raised a number of other queries and requests, including requests for certain injunctive relief, relating to her dissatisfaction with (a) her attempt to abstain assistance from the Bar Association, (b) her inability to obtain a student visa to enable her to pursue legal studies in Hong Kong, so as to gain sufficient legal knowledge to be able to conduct her own litigation, and (c) her inability to secure a place for study of law. None of those matters are relevant to these particular proceedings.

G.  Costs

83.As to costs, Ms Ho acknowledged that the usual order in relation to an application for leave to apply for judicial review is that there be no order as to costs. However, as she pointed out, that is ordinarily because an application for leave is made ex parte. But, in this case, not least where the Court directed the filing of an initial response, where the hearing was conducted inter partes, and where there was obviously so little merit in the application, Ms Ho suggested that that would justify a departure from the usual approach. She therefore invited a costs order to follow the event, and for costs to be payable to the DLA, to be subject to a summary assessment on the basis of a Statement of Costs claiming $96,896.

84.In response, the Applicant queried why – if the DLA is saying this matter is so crystal clear – it was necessary for three different fee earners (Ms Ho and two others) to have worked on the case, and for such a figure of costs to have been incurred. I see some force in that point.

85.But in any event, in the overall circumstances of this case, in the exercise of my broad discretion on costs, and notwithstanding the assistance provided to the Court by the input from Ms Ho, I think that the appropriate order is no order as to costs.

The applicant, acting in person

The putative respondent was excused from court attendance

Ms Joycelyn Ho, Senior Government Counsel (Ag.), of the Department of Justice, for the putative interested party