Esman, Samson N. and Another v. Acmdc Ventures Incorporated

HCA009553/1994

1994 No. A 9553

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

(Transferred from the Labour Tribunal Claim No. E621/94)

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1995 No. A 363

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

(Transferred from the Labour Tribunal

Claim Nos. E3705/94; E3736/94; E3750/94; E3772/94)

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Coram : Deputy Judge Aiken, Q.C. in Court

Date of Hearing : 15 July 1996

Date of Handing Down of Order : 29 July 1996

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O R D E R

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1. Two High Court Actions are before me : No. A 9553 of 1994; No. A 363 of 1995.

2. Early today I gave judgment in terms of Consent Summonses which disposed of all issues between the Defendant and the 2nd Plaintiff in A 9553 of 1994 and between the Defendant and the 1st to 6th, the 8th and 9th and the 11th the 16th Plaintiffs in A 363 of 1995.

3. Mr. Mok appears for all the remaining Plaintiffs in both actions and Mr. Scott, Q.C. appears for the Defendant in both actions.

CHRONOLOGY

4. The recent history in both actions is :

1996

ISSUES

7. The issues I have to decide are (1) whether to try and identify a suitable preliminary issue to occupy the days presently set aside; or (2) whether to adjourn the trial (for the reasons advanced by the Defendant).

8. The Plaintiffs urged that I should occupy part of the time with a preliminary issue. Today those representing the remaining Plaintiffs handled up a draft proposed preliminary issue (in a document titled "Comments on the Defendant's preliminary issues") and also a draft "Factual Background".

SHOULD THERE BE A PRELIMINARY ISSUE

9. Generally a preliminary issue is taken with the consent of the parties and in terms agreed by them. Often the issue is one of law. It is undesirable to take issues which require a detailed examination of the facts : see the Supreme Court Practice 1995 Vol. Notes to Order 33 rule 3/1.

10. The wide extent of the disagreement between the parties over the terms of an appropriate issue is shown by comparing the proposals each have suggested. The Defendant's proposed issue concerns deductions from the Plaintiffs' wages in general. The Plaintiffs' proposed issue takes one small aspect of the deductions referred to as "the 10% deduction". There is also disagreement between the parties about the necessary factual background. This is apparent from comparing the Defendant's "assumptions" with the Plaintiffs' "factual background".

11. The intention of Mr. Justice Jerome Chan's order (25th of June) is that the parties agree both the terms of any preliminary issue and the factual background necessary to dispose of it.

12. It is clear that the parties are a long way from any such agreement. I do not consider it desirable for the Court to impose a preliminary issue on the parties. Given my relatively limited knowledge of the facts I consider it unwise to try and define an issue which the parties have failed to agree. Obviously it would be easy enough to draft an issue. But I doubt whether the answer to it would be of practical benefit. The precise nature and terms of the Plaintiffs' employment contracts are very much in dispute. Apparently there are three versions of the original written agreement. It is argued that in addition there were oral terms and further contractual documents (such as the Special Power of Attorney). The nature and the composition of the contract will depend on what facts are found from the oral evidence. I therefore consider it unhelpful to answer a preliminary issue which may become redundant if the evidence shows that the contract was different from the assumptions on which such issue was based. The risk of answering an issue which may turn out to be "academic" was illustrated when I asked which law (Hong Kong or Philippines) governed the contract(s). I received no clear answer and certainty not one which was agreed by all parties. If the governing law is unclear it is not possible to construe the contract(s). As this difficulty became apparent Counsel for the Plaintiffs urged me to decide which law governed. This was not a practical suggestion. The Plaintiffs have no expert on Philippines law to answer the Defendant's expert.

13. I am satisfied that it would not be of practical benefit to the parties for the Court to impose a preliminary issue in the absence of their agreement. I am satisfied that on the exiting pleadings and evidence it is not possible to isolate an issue which will shorten the trial.

(2) SHOULD THE TRIAL BE ADJOURNED

14. Mr. Justice Jerome Chan's order (25th of June 1996) relieved the Defendant of the need to bring their witnesses to Court for trial in July. The trial of disputed factual issues cannot proceed without these witnesses. Having already decided that it is not possible to define a useful preliminary issue it must therefore follow that the trial has to be adjourned.

15. I order that the trial be adjourned to a date to be fixed in consultation with Counsels' diaries. I ask the Listing Judge to provide the first available date.

Costs

16. I do not consider either party caused the adjournment today. This arose principally from the failure of the parties to agree a suitable preliminary issue and their failure to agree the necessary factual background.

17. Further I am satisfied that a considerable part of the costs incurred today are attributable to the settlement reached between the Defendant and 15 of the 18 Plaintiffs in both actions. These costs have already been taken care of in the consent summons which I ordered earlier today.

18. In the circumstances I make an order nisi that the remaining costs of and related to today's attendance be costs in the cause with liberty to all parties to apply.

(Nigel Aiken, Q.C.)

Deputy Judge of the High Court

Representation:

Mr. Johnny S.C. Mok, instructed by Messrs. Boase Cohen & Collins for the Plaintiff.

Mr. John Scott, Q.C., instructed by Messrs. Masons for the Defendant