Rentokil HK Ltd v. Wan Pui-kwong

HCLA000029/1983

IN THE HIGH COURT OF JUSTICE

Labour Tribunal Claim No. 1426/83

L.T. Appeal 29/83

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BETWEEN

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Coram: Hon. Clough, J. in Court

Date: 12th October 1983

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JUDGMENT

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1. This is an appeal by the Defendant who was given leave to appeal by me on the 4th August this year against an award by the Labour Tribunal made on the 16th June 1983 given in his absence pursuant to section 21 of the Labour Tribunal Ordinance on the basis that the Defendant had been duly served.

2. I granted him leave when he applied because I considered that there was undoubtedly an argument in his favour to the effect that further measures should have been taken under the Ordinance and the Rules to serve him before proceedings were continued under section 21. I have explained to Mr. Chung who has appeared to represent the Claimant company that the effect of Order 5 rule 6(2) is that I am unable to allow him to appear to represent the company on this appeal. I have- given anxious consideration to the question whether or not I should adjourn the appeal to enable the company to instruct solicitors but bearing in mind the time lag in this case, (the decision was in June and leave was given to appeal in August). I feel that it is right that I should have gone on to hear the appeal even although the company has not been heard.

3. I very much regret taking this course but the outcome is merely that there should be a rehearing so the company will be able now to have its case heard before the Tribunal. I consider that the need to get on with the matter should prevail and that 1 should not adjourn the appeal further but I very much regret that I found it necessary to deal with this appeal after hearing only one side.

4. The claim which the Defendant now seeks to resist and did not resist because he did not appear before the Tribunal was a claim by the Claimant company who employed him evidently as a salesman. The contention of the Claimant company was that after serving a month's notice to determine his contract of employment the Defendant had failed to serve out the required time and as a result the Claimant company claimed a sum in lieu of notice under section 8A of the Employment Ordinance. It claims a sum of $1,700.10 (after making a small deduction which was not material) and that sum was awarded by the Tribunal on the basis that the Defendant having given his notice failed to serve out his full month, he only served a few days.

5. The Tribunal heard the evidence on behalf of the Claimant though the Defendant was not there and the findings of fact therefore made by the Tribunal were in favour of the company's claim and the award was made accordingly. It is quite a simple case in that respect.

6. It appears from the record and from the documents in the file that initially the Claimant company had given the address of the Defendant as 707, King Hing House, Hing Hau Estate, Chai Wan, Hong Kong. It seems clear that he never lived at that address but his address in fact was 207, King Hing House, Hing Wah Estate, Chai Wan.

7. When the matter came up for hearing on the 17th May 1983 it appears from the record that the Tribunal was told that the Defendant had not been served and the representative of the Claimant company asked for the address of the Defendant for the purposes of these proceedings to be amended to read Room 207, King Hing House, Hing Wah Estate, Chai Wan, which evidently is an address at which the Defendant says he had once lived.

8. In his grounds of appeal the Defendant said that he moved from there on the 12th March 1983 which was long before the hearing began. He moved to an address at 1804 Man Fu House, Hing Man Street.

9. When the Claimant Company's representative asked to have the address amended in the way I have indicated the Tribunal recorded that it gave leave to amend the address of the Defendant accordingly. It adjourned the hearing to the 16th June and made an order ".... for substituted service on the Defendant at the amended address in the usual two modes to be ordered for by the Registrar ..." The Tribunal further ordered that "The Tribunal Officer to send for the Defendant at the amended address for enquiry, defence and fresh summary of facts, if appropriate."

10. I understand that order to be one, as described, for substituted service and indeed the file indicates that the sequel of that order was that on the 30th May 1983, which I should mention was a date sandwiched in between the 17th May 1983 when the matter first came up for hearing and the 16th June 1983 when it was eventually heard, an affirmation of service was made by the bailiff's assistant indicating that he complied with the Tribunal's order and he sent two copies of the relevant documents by prepaid ordinary post to the address of the Defendant at his last known address, namely 207, King Hing House, Hing Wah Estate, Chai Wan. On the same day he posted up two copies of the documents on a conspicuous place in the main entrance to those premises.

11. The order as it was actually formally drawn up, for substituted service, it is expressed to have been made under section 13(2)(b)(iii) of the Ordinance and rule 6 of the General Rules made under the Ordinance and it directs that copies of the documents be sent by prepaid ordinary post to the Defendant at his last known address namely 207, King Hing House and by posting two copies of the relevant documents at that address.

12. Although I am very reluctant to find error in the Tribunal in this situation, after careful consideration I have concluded that the course that was adopted by the Tribunal in ordering substituted service at that stage was premature.

13. It seems clear from section 13(1)(b) and (2)(b) that the methods by which service can be effected are by delivering the documents personally to the Defendant or by leaving them with some person for him at his last known place of residence or his place of business or thirdly in such other manner as may be directed by the Registrar.

14. Looking at the rule which seeks to implement those provisions one finds that rules 5 & 6 are the relevant rules and rule 5(l) provides:

15. I regard rule 5(3) as being of major importance in this context because it is quite clear that the ordinary method of service is as indicated under rule 5 and that whoever effects service endorses, on the copy of the document that he retains, the date and place of service and the name of the person receiving it and he signs that endorsement.

16. It must follow, in my judgment, that if there is no one that he can give the document to it is likely that he will report back to this effect. This will alert the Tribunal, for example, if the relevant flat is empty, of that fact, so that it can then, having been given that information, decide what form of substituted service would be appropriate. In my judgment it will not be of any practical value to order postal service at an empty flat. That in my view is one example of the purpose of rule 5(3) requiring endorsement and indication that documents are to be left with some person who is to be named when the officer effecting service reports back.

17. In the present case my understanding of what happened on the 17th May was that the representative of the Claimant company very properly drew the attention of the Tribunal to the fact that they had given the wrong address under circumstances which I do not pursue, to the Tribunal. Clearly service could not be properly effected at that address.

18. In my judgment the proper and correct course for the Tribunal at that stage would have been to direct service in the ordinary way pursuant to rule 5 at the amended address. If that had happened there would have been at least a reasonable likelihood or possibility, in my judgment, that information would have come back to the Tribunal from the process server which would have alerted the Tribunal to the fact that the Defendant no longer lived at this address. At that stage it seems to me it would have been right to order some form of appropriate substituted service.

19. What in fact happened was, as I have indicated above, that the Tribunal ordered substituted service by a post at the address, Room 207, which in fact the Defendant had already left.

20. In my judgment it was premature to order that form of substituted service at that stage of the proceedings and it produced the result that the prospects of the Defendant ever receiving the relevant documents were negligible. That course having been taken and the Defendant having in my judgment been put in a position where it was most unlikely that he would ever receive these documents, he should not now be shut out.

21. In my judgment there was an error made by the Tribunal, and I am most anxious not to appear to be censorious in saying that. It was a very understandable error. It is however an error which was to the detriment of the Appellant who was the Defendant in the proceedings. It must in my view have been a substantial factor causing his non-attendance.

22. The Tribunal has very properly pointed out in a very clear judgment that it would have been open to the Appellant here, instead of going through all the appeal procedure, to simply apply to the Tribunal ex parte to set aside the judgment because it was given in his absence in the circumstances which I have outlined. The Tribunal could then have dealt with the matter, re-opened the case and dealt with it inter partes. That of course is quite correct. On the other hand the Defendant who is appealing here is a layman and he in fact has not taken that course.

23. In my judgment the fair and proper course for me to take on this appeal, having found that there was an error here in the application of the rules, is to make an order under section 35(1)(c) of the Ordinance. I accordingly allow the appeal and remit the matter to the Tribunal with a direction that this case be reheard. I do not think I need make any further order.

Representation:

Appellant WAN Pui-kwong in Person