Yu Hoi Po v. Act International Ltd.

HCA006133/1995

1995 No. HCA6133

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: The Hon. Mr. Justice Seagroatt in Court

Date of Hearing: 2 October 1996

Date of Handing Down of Judgment: 8 October 1996

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J U D G M E N T

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1. This is an appeal against the decision of the Learned Registrar dissmissing the appellant's application to join four Defendants to the proceedings instituted by her as Claimant in the Labour Tribunal.

2. In those proceedings she claimed arrears of salary, salary in lieu, payment for annual leave and other unpaid benefits. The claim was transferred to the High Court under Section 10 of the Labour Tribunal Ordinance (Cap. 25). Although no specific reasons appear on the papers for this decision to decline jurisdiction, it may well have been because of the nature and amount of the claims against the employer and because some mention was made about other claims involving the parties.

3. Having been transferred, it came before the Master, and eventually the Learned Registrar, for directions as to further conduct of the proceedings under Order 79 Rule 1. The proper course, and there is agreement in this regard, as well as authority in support, is for the application to be treated as if it was a writ for the purposes of subsequent proceedings.

4. The Plaintiff applied to add four Defendants three of whom were outside the jurisdiction, and the Defendants applied to strike out the Amended Statement of Claim, which the Learned Registrar did. There is no appeal from that decision.

5. Although the appellant has argued her appeal on the basis that the Court has power to join parties to an action transferred from the Labour Tribunal, this has to be seen and decided in the context of what the Plaintiff in fact sought to do in this case, and accordingly the causes of action as set out in the Amended Statement of Claim were highly pertinent. A number of causes of action were disclosed including a claim for damages against the 1st Defendant for "stress and worry". There were other somewhat convoluted and complex claims against other Defendants, as well as a claim in partnership for a share of profits. Some of them were pleaded in the alternative.

6. It may well be that after transfer to the High Court it is revealed that some other party is in fact the employer - e.g. a holding company, or a subsidiary company, or a partnership rather than a corporation, or there is a lack of certainty which can be resolved only by adding a party. What the Claimant has sought to do in this case is to use the Labour Tribunal application on which to litigate a multiplicity of claims against a variety of entities.

7. When Section 10 of the Labour Tribunal Ordinance is invoked to transfer a claim to the High Court it is a transfer of jurisdiction. The claim itself remains confined to that which the Tribunal has jurisdiction to entertain in the first instance and although it becomes subject to the jurisdiction and rules of the High Court for the purposes of its progress and resolution, it does not change its character. The schedule to the Ordinance continues to govern the nature and extent of the claims permitted.

8. Order 15 r. 4 (joinder of parties) covers the position in which the Plaintiff seeks to join one or more Defendants where there is some common question of law or fact. This envisages the position I have set out where there is uncertainty as to who is the actual employer. It does not in my view exist to enable a claimant to widen his action into something over which the Labour Tribunal could not have jurisdiction originally. His or her remedy is therefore to commence an action or actions in the High Court which is the proper venue for such claims.

9. A number of authorities have been referred to but, again it is common ground, they do not bear on the real issue. Dataprep (H.K.) Limited v. Kuo Chi Yung 1974 H.K.L.R. 383; Hing Sang Engineering Works Ltd v. Yu Wing Fat 1974. H.K.L.R. 394; and Abola Josephine Ann v. LA Gear Inc & Anor. 1994 2 HKC 640 re-affirm that the rules of the High Court apply to cases transferred under Section 10 of the Labour Tribunal Ordinance. Order 15 r. 4 is to be applied in the context of the original application.

10. Even if there were to be some doubt about the extent to which the Claimant could invoke Order 15 r. 4, the Court has an inherent jurisdiction to decide whether or not it is appropriate to grant such leave in the circumstances of this case. I have no doubt that having read the somewhat complex Statement of Claim many times, the issues raised in it are such that the potential Plaintiff should start her action or actions in the High Court by writ, so that they are free-standing, and not seek to tack them onto a very straightforward application which can be resolved with the minimum of formality and cost.

11. The appeal is dismissed with costs to the Respondent.

(Conrad Seagroatt)

Judge of the High Court

Representation:

Mr. Ben Beaumount instructed by Messrs Deacons Graham & James for Plaintiff/Appellant.

Mr. Douglas Clark of Messrs Lovell White Durrant for Defendant/Respondent.