William Francis Archambaud v. Sino Communication Holding Ltd.
Read the full judgment text of HCLA 7/1982 on BabelCite. This HCLA judgment was delivered on 7 July 1982.
1. This appeal against the decision of the Labour Tribunal, brought by leave, raises a number of difficult questions. The background of the matter is as follows. On the 18th September 1981 Mr. Chao issued a writ in the High Court, endorsed with a statement of claim, against Sino Communication Holding Ltd. (H.C.A. 1981/6434). The defendant company filed a defence on the 13th October 1981. On the 28th January 1982 Mr. Chao also commenced proceedings in the Labour Tribunal under the Labour Tribunal
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HCLA000007/1982 Labour Tribunal Appeal No. 7 of 1982 IN THE SUPREME COURT OF HONG KONG HIGH COURT ____________________
____________________ Coram: The Hon. Mr. Justice Fuad Date: 7 July 1982 ________________ J U D G M E N T ________________ 1. This appeal against the decision of the Labour Tribunal, brought by leave, raises a number of difficult questions. The background of the matter is as follows. On the 18th September 1981 Mr. Chao issued a writ in the High Court, endorsed with a statement of claim, against Sino Communication Holding Ltd. (H.C.A. 1981/6434). The defendant company filed a defence on the 13th October 1981. On the 28th January 1982 Mr. Chao also commenced proceedings in the Labour Tribunal under the Labour Tribunal Ordinance - Cap. 25 ("the Ordinance") against Sino Communication Holding Ltd. ("the Company") and Sino Communication Company Ltd., claiming $213,388.70, made up as follows -
All these claims are embraced by the High Court action save the claim for "double pay", and in that action Mr. Chao seeks the following additional reliefs -
2. The Company received notice of Mr. Chao's claim in the Labour Tribunal on the 29th January 1982 and the 23rd February was to be the hearing date. The Company's solicitors wrote at once (the 2nd February 1982) to the Labour Tribunal drawing attention to the High Court action, enclosing copies of the pleadings, and inviting the presiding officer to consider declining jurisdiction. The Registrar of the Tribunal promised to lay the matter before the presiding officer on the hearing date, by his letter of the 3rd February. And so on the 23rd February, as revealed by the notes of proceedings, the question was considered - the notes say "Legal situation about jurisdiction explained". The hearing was then adjourned to the 13th April with the following note: "Meanwhile defendant to see Tribunal officer concerned to furnish defence materials". An application for leave to appeal was filed on behalf of the Company on the 1st March, and I granted leave on the 2nd April. 3. No argument was addressed to me by Miss Audrey Eu on behalf of Mr. Chao that an appeal did not lie against the Tribunal's refusal to decline jurisdiction.It is true that Huggins J. sitting in the Full Court in Datarep (H.K.) Ltd. v. Peter Kuo Chi-Yung(1) was "by no means persuaded that an appeal would lie under s.32 against an order of transfer" (at p.394) but he was considering the wording of s.32 of the Ordinance in its original form and before it was amended by Ordinance 29 of 1974. The section does not now speak of an appeal against a "determination by the tribunal" but against "an award, order or determination by the tribunal", and I have no doubt that the present appeal is competent. 4. The presiding officer had obviously given the matter considerable thought for on the 27th March he gave the following reasons for his decision. He began by pointing out that s.7 of the Ordinance gave the Tribunal exclusive jurisdiction to inquire into, hear and determine, inter alia, a claim for a sum of money arising from the breach of a term, whether express or implied, of a contract of employment. Such exclusive jurisdiction was, of course, subject to the provisions of s.9 of the Ordinance under which the Tribunal might have to effect, with the consent of the parties, a severance of the claim for commission, as any claim would have to be filed in the Tribunal within 12 months after the cause of action had arisen. The several items of claim were otherwise prima facie actionable (and only so) in the Tribunal. 5. He went on to say that ss.14 and 15 of the Ordinance also provided for inquiries and conconciliation to be conducted by a Tribunal Officer before the hearing of a claim, who had a duty to compile a summary of facts, for which reason he was given certain powers under s.14 including interviewing any person, entering and inspecting premises and compelling the production of documents. Under s.16 the Tribunal had to ensure that there was no avoidable delay in the determination of the matter. In view of the exclusive jurisdiction of the Tribunal and the functions to be performed by a Tribunal Officer he felt duty bound to order the attendance of the defendants for an interview with the Tribunal Officer. Likewise, he felt, it would be futile at this stage to consider the claim as vexatious on account of it being duplicated in a High Court action. The items and amounts involved would show that the claim was in no way frivolous. It was in his view improper as well as unfair to permit any further delay of the proceedings in the Tribunal.He observed that should the defendants be vexed by the proceedings being de facto a duplication of the High Court action they would be well advised to take such steps as necessary in the High Court to strike out the plaintiff's claims therein. He concluded by saying that he had considered s.10 of the Ordinance in relation to the mater, but had found "no valid reasons why the Tribunal should decline jurisdiction over claims which it is by statute basically our own duty to deal with." 6. I must say at once that the presiding officer was faced with a difficult and unusual situation and, of course, he did not have the assistance of Counsel in deciding what was the best course to follow in all the circumstances. 7. Before I go any further I think it is necessary to set out the relevant provisions of the Ordinance. Section 7 is in the following terms -
8. The material part of the Schedule, for the purposes of this case, is as follows -
Section 10 of the Ordinance reads -
9. Mr. Martin Lee for the Company drew my attention to an interesting Case Commentary on the Datarep case by Mr. Robert Ribeiro in (1975) H.K.L.J. 213. Mr. Ribeiro was then a Lecturer in Law at the University of Hong Kong but now, happily, practices before the Courts. I might be permitted to say, with respect, that I found the Commentary illuminating. 10. It has been seen that s.10 does not provide any guidelines whatever as to circumstances in which the Tribunal might properly decline jurisdiction, and having done so, transfer the claim to either the High Court or the District Court. Clearly, then, a wide and unfettered discretion is given. In the Datarep case, the judges gave some examples. Briggs C.J. said, at p.391: "A very good reason for making an order for transfer could well be lack of jurisdiction or a doubt as to jurisdiction." The same point was made in different words by Huggins J. at pp. 394 - 395. Earlier he had said "In my view s.10(1) is in such terms that it is doubtful whether it could ever be said that an order for transfer was made without jurisdiction". In his Commentary on that case, Mr. Ribeiro suggests that in the judgment of Pickering J. can be found possible criteria involving the size and complexity of the claim and the fact that it is strong contested. This suggestion may be based on a passage in Pickering J.'s judgment that occurs at p.413, but it seems to me, with respect, that the judge was there dealing with the procedure which was best suited to a hearing in the Supreme Court, once a transfer order is made. However that may be I think it would be inappropriate for me, as a single judge, to attempt to lay down guidelines for the proper application of s.10. Each case must be decided in the light of its special facts and that is how I propose to approach the matter before me. 11. Miss Audrey Eu had the courtesy of explaining to me why she had first advised the institution of the High Court action, and why she later thought it right to advise the filing of a claim in the Tribunal.While I am grateful for her frankness, I think the position must be judged against the background of the factual situation existing at the time the presiding officer made his decision.Apart from the reasons why the claims were partially duplicated, as revealed by a letter of Mr. Chao's solicitors to the Company's solicitors dated 3rd March 1982, it seems that Mr. Chao himself had a change of heart because he had also asked the presiding officer to transfer the case to the High Court. Miss Eu now firmly asks me to maintain the presiding officer's decision and allow the claim to proceed before the Tribunal. Once these claims had been disposed of cheaply and speedily, the remaining reliefs (those in the statement of claim which were not duplicated) could be adjudicated upon in the High Court. It is perhaps necessary to point out that Mr. Chao has taken no steps to date to discontinue any part of his claim in the High Court. 12. The avoidance of unnecessary proceedings is a cardinal principle in all litigation. Where reliefs are sought based on the same cause of action in two different tribunals, it is vexatious to the defendant and there is a danger that the tribunals might come to different conclusions about matters of fact and of law, and if this were to happen the confidence of the public in the administration of justice will be undermined. Our procedures are designed to avoid such a possibility and in my judgment the Courts must strive, unless expressly prohibited by statute, to adhere to this principle. The difficulty here, of course, is that the Labour Tribunal is given exclusive jurisdiction (and not concurrent jurisdiction with other appropriate courts) to deal with claims falling within the Schedule to the Ordinance. 13. In the present case, the Company, by its defence in the High Court action, did not raise the matter of the exclusive jurisdiction of the Tribunal in respect of most of the reliefs sought; and, indeed, the Company is anxious that all the claims against them should be dealt with in the High Court. If no claim had been filed in the Tribunal and the Company had chosen to raise the matter of jurisdiction (or if the High Court had raised the issue on its own motion) one might wonder what would have happened. Unfortunately the Ordinance does not deal with what might be called "mixed claims" i.e. actions which include reliefs which can, and those which cannot be granted by the Tribunal. It might just be possible to argue, as a matter of interpretation, that what the legislature really meant was that the Tribunal should have exclusive jurisdiction in proceedings which are limited to claims set out in the Schedule, and that the ordinary rules of jurisdiction apply when such a claim is coupled with matters beyond the Tribunal's jurisdiction. I recognize that this might be a strained interpretation for the words employed in s.7 of the Ordinance are very plain, but I do not think I should attempt to answer this hypothetical question. 14. As both sets of proceedings stood at the date of the presiding officer's decision, and stand before me, I agree with Mr. Lee that the Tribunal proceedings cried out for transfer to the High Court. Mr. Chao should not be allowed to proceed in both forums simultaneously. The difficulties presented by the exclusive jurisdiction of the Tribunal can be overcome by praying in aid what I have called the wide and unfettered discretion given by s.10 and once a transfer order is made, it seems to me clear that the High Court plainly has jurisdiction to entertain claims that would otherwise be in the Tribunal's exclusive jurisdiction list. 15. In my judgment to maintain the presiding officer's decision would result in an injustice to the Company and I am therefore entitled to interfere with the exercise of his discretion. I cannot see what prejudice will be caused to Mr. Chao who, after all, himself chose to institute the High Court action. 16. For the reasons I have given, I allow the appeal. Strictly speaking, I suppose, I should remit the matter to the Tribunal for the transfer order to be made, but in all the circumstances I think it would be proper and sufficient if I were to make the order myself. The simplest way to deal with the matter thereafter, it seems to me, is to direct that the High Court action and the Tribunal claim come into the list before the same judge on the same day, reserving all questions as to procedure to him. It occurs to me that the parties might wish to agree to an amendment to the statement of claim so that it includes the claim for "double pay", at the same time agreeing to a consequential amendment to the defence, and then the Tribunal claim could be quietly forgotten. As I understand the position the parties have already agreed that the Tribunal proceedings against Sino Communication Company Ltd. should be discontinued. 17. I make the following orders nisi as to costs -
Representation: Mr. Martin Lee, Q.C. & Mr. Patrick Wu (Tsang, Chau and Shuen) for Appellant. Miss Audrey Eu (Fairbairn & Kwok) for Respondent. (1) [1974] H.K.L.R. 383 |
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