Lee King Sin v. Stikeman, Elliott and Another

HCLA000083/2000

HCLA83/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO.83 OF 2000

(ON APPEAL FROM LBTC NO.6338 OF 2000)

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Coram: Deputy High Court Judge S. Kwan in Chambers

Date of Hearing: 5 January 2001

Date of Decision: 10 January 2001

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D E C I S I O N

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1. This is an application for leave to appeal against an award or order made by a Presiding Officer of the Labour Tribunal, Mr Lambert Lee, on 28 September 2000 under section 32 of the Labour Tribunal Ordinance, Cap.25 by the 1st defendant, a firm of solicitors, and the 2nd defendant, who is a partner of the firm. The order dated 28 September 2000 was stated by the Presiding Officer to be made by consent and in that order, judgment was given to the claimant for a certain amount and provision was made for the payment of the amount to be made by installments with a provision of the consequence to follow in default of payment of an installment. This order, made on 28 September 2000, was set aside by the Presiding Officer on review under section 31 of Cap.25 on 13 October 2000. It is contended by the defendants that the order made by the Presiding Officer on review on 13 October 2000 was ultra virus because the review was conducted outside the prescribed period of 14 days from the date of the award or order on 28 September 2000 under section 31. As the Presiding Officer had no jurisdiction in purporting to set aside the order of 28 September 2000 when he conducted the review on 13 October 2000, the order of 28 September 2000 has remained in effect. Hence, the defendants brought this application for leave to appeal against the earlier order on 28 September 2000.

2. The crux of the matter turns on the proper interpretation of section 31 of the Labour Tribunal Ordinance. It is the defendants' contention that on a proper construction of that provision, the review must be heard within 14 days from the date of the order given on 28 September 2000.

3. It may be convenient to set out in full section 31 of the Labour Tribunal Ordinance :

"31. Review of awards and orders

(1) Except where a party has filed an application for leave to appeal and does not agree to withdraw the application, a presiding officer may, within 14 days from the date of an award or order given or made by him, review the award or order and on such review may re-open and re-hear the claim wholly or in part and may call or hear fresh evidence and may confirm, vary or reverse his previous award or order.

(2) The power conferred by subsection (1) may be exercised -

(a) by a presiding officer of his own motion, on notice in the prescribed form to all parties;

(b) on the application of a party within 7 days, on notice in the prescribed form to all other parties.

(3) The exercise of the power conferred by subsection (1) shall not operate as a bar to appeal by a party against the award or order or thereafter against the determination of the review.

(4) On the application of a party for a review of an award or order, the presiding officer, having regard to the possibility of assets which may be available to satisfy an award being disposed of to the prejudice of any party, may make such order regarding payment into the tribunal, giving of security or otherwise as he may think fit.

(5) A presiding officer may transfer the hearing and consideration of a review to another presiding officer who shall have all the powers and functions which he would have if he had originally heard the claim and had prepared the record of proceedings."

4. The sequence of relevant events may be given as follows.

5. On 5 October 2000, and within the period of seven days from the date of the award or order as stipulated in section 31(2)(b), the defendants filed an application for review in the prescribed form which is Form No.13 in the Labour Tribunal (Forms) Rules stating that they were dissatisfied with the award or order made on 28 September 2000 and pursuant to section 31(2)(b), applied to the Presiding Officer to review the award or order. A letter dated 9 October 2000 was faxed by the defendants to the Labour Tribunal stating that the claim between the parties was settled "outside of the purview of the Labour Tribunal" and that "the claim should have been withdrawn". Consequently, the order dated 28 September 2000 should not have been made by the Presiding Officer. The defendants requested a prompt response from the Labour Tribunal on the matter.

6. Due to the public holiday on 6 October 2000 and the weekend that followed, the defendants' application was not dealt with by the Presiding Officer until Monday, 9 October 2000, when the defendants' application for review was placed before the Presiding Officer by an officer in the registry of the Labour Tribunal. On the same day, the Presiding Officer directed that the claimant and the defendants should be informed to attend the Tribunal on 13 October 2000 for the hearing of the review application and the Notice to be given to them under section 31(2)(b) was to be served by ordinary post and the parties were to be informed by telephone. Accordingly, the Notice in the prescribed form dated 9 October 2000, which is Form No.12, was sent to the parties who were informed that an application for review had been made by the defendants in respect of the award or order made on 28 September 2000 and that the Presiding Officer "will review the award/order" on 13 October 2000 at 10 a.m.

7. The hearing date of 13 October 2000 was one day outside the period of 14 days from the date of the award as stipulated in section 31(1).

8. Upon receipt of the above Notice of Review on 11 October 2000, the defendants wrote to the Labour Tribunal stating that the time for the hearing proposed by the Presiding Officer for the review was "outside of the time permitted under subsection 31(1)". They submitted in that letter that the Presiding Officer had no authority to undertake the review as it would be "outside of the prescribed time".

9. The Presiding Officer took a different view on the construction of section 31. He was of the view that the decision to review must be taken within 14 days from the date of the award or order but the actual hearing could be held outside this period. The review hearing took place on 13 October 2000 as scheduled. The defendants did not appear. After hearing the claimant, the Presiding Officer was satisfied with the claimant's explanation that the true intention of the parties, when they reached a settlement, was for the claimant to withdraw the claim. Accordingly, he set aside the award or order he made on 28 September 2000.

10. At the hearing before me, it was argued for the defendants that on the plain reading of the relevant words in section 31(1), i.e. "a presiding officer may, within 14 days from the date of an award or order given or made by him, review the award or order", the review must be "conducted" and "heard" within the 14-day period as stipulated. The hearing does not need to be completed within the 14-day period but it must be commenced within that period. It was argued that until there is a hearing, there is no "review" as provided in section 31(1). It was also submitted that the prescribed form in Form No.12, being the Notice of Review by a presiding officer on the application of a party, would appear to suggest that the review is the event of a hearing as the party would be notified by that notice that the Presiding Officer "will review the award/order" at the stated time and date.

11. I have considered these arguments carefully and I have come to the firm view that the Presiding Officer is clearly right in his construction of section 31. My reasons are as follows.

12. In section 31(2), it is provided that "the power conferred by subsection (1)", i.e. the power of review, "may be exercised" in two ways. Where the review is by a presiding officer of his own motion, the power of review "may be exercised" on notice in the prescribed form to all parties, which is Form No.11 of the Labour Tribunal (Forms) Rules. Where there is an application of a party for a review, the power of review "may be exercised" on giving notice to all other parties in the prescribed form, which is Form No.12. In my view, on the clear wording of section 31(2), the power of review is exercised once the notice in the prescribed form is given. In the present case, the Notice in Form No.12 dated 9 October 2000 was given before the expiry of the 14-day period on 12 October 2000.

13. Thus, on the clear wording of section 31(2), the process of review is set in motion upon the giving of the Notice in the prescribed form and the power of review is thereby "exercised". There is no support for the defendants' submission that for the Presiding Officer to exercise the power of review under section 31(1), an actual hearing must be commenced. I note also that the words "hearing and consideration of a review" are used in section 31(5). These words or similar wording are not used in section 31(1).

14. I have reached the above conclusion on the plain wording of the provisions in section 31. There is no need for me to consider a purposive interpretation or whether the practicalities of how things are done in the Labour Tribunal would have allowed an actual hearing of the review to take place within 14 days from the date of an award or order under review.

15. As I am not satisfied that the defendants' argument on the construction of section 31 would have reasonable prospects of success, I refuse leave of the defendants to appeal from the award or order made on 28 September 2000.

Representation:

1st Defendant, Stikeman Elliott, represented by Mr Clifford Ng Sau Man

2nd Defendant, Ng Sau Man, acting in person