Leung Yiu Ming and Others v. Jade Palace Restaurant Centre Ltd.

CACV000140/1984

IN THE COURT OF APPEAL

BETWEEN

Coram: Cons, Fuad & Kempster, JJ.A.

Date of Hearing: 21st November, 1984

Date of Judgment: 21st November, 1984

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JUDGMENT

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Kempster, J.A.:

1. On 17th May this year the Labour Tribunal made certain awards in relation to a dispute between the Jade Palace Restaurant Ltd. and a number of former employees. Being dissatisfied Jade Palace Restaurant applied to Hunter J. on 10th July for leave to appeal pursuant to section 32 of the Labour Tribunal Ordinance (Cap. 25). The learned judge refused the application.

2. Nothing daunted, Jade Palace appealed to this court on 27th July pursuant to section 35A of the Ordinance against the refusal of leave.

3. The appeal was successful and leave to appeal from the awards of the Labour Tribunal, limited to a single question of law, was granted. The effect of the order of this court was to permit an appeal to the High Court pursuant to section 32. It did not and the provisions of the Ordinance did not permit it to order a leapfrog appeal from the Labour Tribunal to the Court of Appeal by analogy with the English procedure for appealing directly from the High Court to the House of Lords pursuant to sections 12 to 15 of the Administration of Justice Act 1969.

4. Although the point was not argued on 27th July a clear repugnancy is apparent between the terms of section 32(3) and of section 35A of the Ordinance. By necessary inference this court held that the provisions of section 35A prevailed over those of section 32(3). However, the real intention of the Legislature may well have been that the provisions of section 35A were to apply to a decision of the High Court made pursuant section 35, that is after a substantive hearing, rather than in relation to an application made pursuant to section 32. The wording of section 35(3) so suggests. In the circumstances it may be thought appropriate for the terms of sections 32 to 35A of the Ordinance and of sections 28 to 29B of the Small Claims Tribunal Ordinance (Cap. 338), which are in similar terms, to be considered by the Legislature. Be that as may the proceedings listed before us this afternoon are misconceived and a nullity.

Representation:

Mr. B.A. Sceats (Job Young & Co.) for defendant

Mrs. J. Barnes (Chan & Yung) assigned by D.L.A. for 12th, 15th & 16th claimants

Other claimants in person