Jade Palace Restaurant Centre Ltd v. Leung Yiu-ming and Others

Case No.HCMP 127/1985

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCMP000127/1985

M. P. 1985 No. 127

Courts, practice and procedure - Labour Tribunal

Ordinance, Cap. 25, sections 32, 35 and 35A

To give effect to the intention of the legislature in providing a scheme for appeals from the decisions of the tribunal, upon the proper construction of section 35(1) and (2) and section 35A of the Ordinance, the expressions "under section 32" wherever they occur in those sections must be read as if they were: "following an appeal heard by leave given under section 32", so that -

	(a)	no appeal lies from a refusal by the High Court to grant leave to appeal to that Court;
	(b)	if leave to appeal to the High Court has been granted, the decision of the High Court on the hearing of the appeal is final unless the Court of Appeal considers that a question of law of general public importance is involved, and thus grants leave to appeal to the Court of Appeal. Seaford Court Estates Ltd. v. Asher [1949]2 K. B. 481 and Jones v. Wrotham Park Estates [1980] A. C. 74 applied.

Having regard to the nature of an earlier application to the Court of Appeal, estoppel per rem judicatam arose as between the parties, and the applicants could not be heard to contend to the contrary of a precise construction of section 35A which had, by necessary inference, already been decided in their favour. Zeiss Stiftung v. Rayner & Keeler [1970] Ch. 506 applied.

IN THE COURT OF APPEAL

Miscellaneous Proceedings

1985, No. 127

IN THE MATTER OF THE LABOUR TRIBUNAL ORDINANCE CAP. 25 SECTION 35A AND SECTION 37

BETWEEN

JADE-PALACE RESTAURANT CENTRE LTD.

Appellant

and

LEUNG YIU-MING

WONG YUET-WAH

WONG YU-CHUNG

as representatives and 20 others

Respondents

-----------------------

Coram: Sir Alan Huggins, V.-P., Fuad & Kempter, JJ.A.

Date of Hearing: 8th February 1985

Date of Judgment: 8th February 1985

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JUDGMENT

_____________

Sir Alan Huggins, V.-P.:

1. This is an ex parte application for leave to appeal from a decision of the High Court on an appeal heard pursuant to leave granted by this court on 27th July 1984 purportedly under s. 35A of the Labour Tribunal Ordinance. The application for that leave was made ex parte and there was no argument as to the jurisdiction of the court to grant the order sought.

2. The question arises whether there is jurisdiction to grant the leave now sought.

3. The provisions relating to appeal in the Labour Tribunal Ordinance (and they are similar to those in the Small Claims Tribunal Ordinance) are very far from clear. Section 32 provides for an application to the High Court for leave to appeal from a decision of the Tribunal. Sub-section (3) provides that a refusal by the High Court to grant leave to appeal shall be final. However, s. 35A(1) provides:

If any party is dissatisfied with a decision of the High Court under section 32, such party may, within 7 days after the date of the decision, apply to the Court of Appeal for leave to appeal and, if the Court of Appeal considers that a question of law of general public importance is involved, it may grant leave."

It was under that sub-section that this court gave leave on 27th July to appeal to the High Court. It was assumed that the court had jurisdiction to grant such leave in spite of s.32(3), because no decision of the High Court "under s.32" could be other than one granting or refusing leave.

4. That this court had correctly assumed jurisdiction to grant leave to appeal to the High Court appeared to be confirmed, obiter, by another division of the court when, having mistaken the terms of the Order of 27th July, the Appellant appealed directly to the Court of Appeal against the decision of the Tribunal. The court held that the appeal was incompetent. In delivering judgment Kempster, J. A. said:

"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 to section 35, that is after a substantive hearing, rather than in relation to an r application made pursuant to section 32. The wording of section 35(3) so suggests. In the circumstances it may bethought 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 6e considered by the Legislature."

Whilst it is true that it was a necessary inference from the Order of 27th July that the provisions of s. 35A prevailed over those of s.32(3), I do not think we are bound to accept as a binding precedent a decision made without argument upon an ex parte application. It is open to us to reconsider the position in the light of matters now brought to our attention upon this application.

5. I now think I was wrong when I was party to the granting of leave to appeal to the High Court. That there is a repugnancy between s.32(3) and s.35A if both sections are Strictly interpreted according to the plain words there can be no doubt. Nevertheless we must, if possible, so interpret those provisions as to avoid repugnancy. As Denning, L. J. (as he then was) said in Seaford Court Estate Ltd. v Asher 1949 2 K. B. 481 at p.499:

It would certainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it, and on the mischief which it was passed to remedy, and then he must supplement the written word so as to give 'force and life' to the intention of the legislature. That was clearly laid down by the resolution of the judges in Heydon 's case ((1584) 3 co Reg. 7a), and it is the safest guide to-day. Good practical.advice on the subject was given about the same time by Plowden in his second volume Eyston v Studd ((1574) 2 Plowden, 465). Put into homely metaphor it is this: A judge should ask himself the question: If the makers of the Act had themselves come across this ruck in the texture of it, how would they have straightened it out. He must then do as they would have done. A judge must not alter the material of which it is woven, but he could and should iron out the creases."

There are indications in the fasciculus of sections starting with s.32 that the Legislature intended s.32(3) to prevail. A refusal by the High Court to grant leave to appeal shall hall be final. The scheme, Which Mr. Donnelly at first was prepared to concede, would thus be that, where the High Court refuses leave to appeal against a decision of the Tribunal, that refusal would be final but that, where the High Court gives leave and hears the appeal, no further appeal would lie to the Court of Appeal unless the Court of Appeal was of opinion that a question of law of general public importance was involved, in which case an appeal would lie to the Court of Appeal against the decision of the High Court on the hearing of the appeal.

6. The indications to which I refer are these. The words "under s.32", which create the apparent repugnancy, appear also twice in s.35 in relation to appeals to the High Court. Section 32 is not directly concerned with appeals to the High Court any more than it is directly concerned with appeals to the Court of Appeal: it is concerned with applications for leave to appeal to the High Court. In s.35, therefore, the words must be construed as though they read "following an appeal heard by leave given under s.32", otherwise s.35 also would make nonsense. If the same construction is given to the same word in s. 35A, all the difficulty vanishes and the scheme just outlined would automatically emerge.

7. Another material provision is s.35(3), to which Kempster, J. A. referred upon the abortive appeal. It reads:

Subject to section 35A, the decision of the High Court shall be final."

and I emphasize the words "subject to s. 35A". That suggests that the decision of the High Court on the appeal shall not be final if the Court of Appeal gives leave to appeal from that decision under s. 35A. That interpretation is further supported by s. 35B(c):

On an appeal under s. 35A, the Court of Appeal may -

....

remit the matter to the Tribunal with such directions as it thinks fit which may include a direction to the Tribunal for a new hearing."

The power there conferred upon the courts would be wholly inappropriate for an appeal against the dismissal of an application for leave to appeal to the High Court against the decision of the. Tribunal but would be appropriate to the hearing of an appeal against the decision of the High Court pursuant to leave granted by the Court of Appeal.

8. The result is, as I have indicated, that I think that the Order of 27th July giving leave to appeal to the High Court was ultra vires. It follows that we put Mayo, J. in the unhappy position of being obliged to hear an appeal which he, also, had no jurisdiction to hear. We cannot compound the error by giving leave to appeal against his decision. Kempster, J. A. in the judgment he is about to deliver will give a further reason why this particular application is incompetent and I entirely agree with what he is about to say.

9. For these reasons I would strike out this application as one which we have no jurisdiction to hear.

Fuad, J. A.:

10. I agree with all that my Lord the Vice-President has said and with the order that he proposes. The object and intention of s.32 to 35B of the Ordinance providing a scheme for appeal is plain and the court must try to give it effect. The insertion of the words suggested by my Lord in the relevant provisions is justified, for otherwise it would be repugnant and contrary to good sense. My Lord Kempster J. A. has been good enough to indicate to me what he is about to say in his judgment and I share his views on the issue not dealt with by my Lord the Vice-president.

Kempster, J. A.:

11. On 27th July 1984 the applicants sought and obtained leave to appeal to the High Court against awards of the Labour Tribunal despite the earlier refusal of such leave by Hunter, J. They relied upon the terms of section 35A of the Labour Tribunal Ordinance to endow this Court with jurisdiction to grant such leave.

12. On 21st November the applicants again appeared before the Court of Appeal under the mistaken impression that they had been granted leave to appeal to us directly from the determination of the Tribunal. Those proceedings were struck out and the appeal was in due course heard by Mayo, J. and dismiseed. Now the applicants invoke section 35A yet again in order to give the Court jurisdiction to entertain an application for leave to appeal from the decision of that judge.

13. Although, in giving judgment on 21st November 1984, we explained the basis upon which the decision to allow the application of 27th of July must have been granted and commented on the apparent ambiguity of the relevant legislation we also indicated that such decision might thereafter be held to have been given per incuriam and an alternative construction of sections 32 to 35B be favoured. But the same applicants in the same proceedings cannot have the benefit of two mutually inconsistent ways of construing the same section of an ordinance. If section 35A is properly to be read literally, as hitherto it has been, it allows the Court of Appeal only to allow an appeal from the Tribunal to the High Court despite the refusal of a judge on application made to him pursuant to section 32.

14. The doctrine of estoppel cannot be invoked to give or deny the Court a jurisdiction contrary to the provisions of an ordinance but estoppel per rem judicatam can and here does arise as between the parties. As Buckley, J. (as he then was) said in Zeiss Stiftung v. Rayner & Keeler (No. 3) ⁽¹⁾ at pp. 538 and 539:

To make good a claim of estoppel per rem judicatam the party asserting the estoppel must establish: (1) that there has already been a judicial decision by a competent court or tribunal, (2) of a final character, (3) of the same question as that sought to be put in issue by the plea in respect of which the estoppel is claimed, (4) between the same parties, or their privies, as the parties between whom the question is sought to be put in issue. - Finality for this purpose means that the decision (a) is one which does not ex facie, as in the case of an order for an account or inquiry, leave something to be judicially determined or ascertained before the decision can become effective or enforceable, and (b) is not subject to subsequent discharge, rescission, modification or any other form of review by the court or tribunal making the decision."

The order of 27th July 1984 was final in this sense and the applicants cannot be heard to contend to the contrary of a precise construction which, paradoxically, has by necessary inference already been decided in their favour in the same matter and as between the same parties

15. If section 35A is properly so to be construed as to read

"(1)

If any party is dissatisfied with a decision of the High Court - following an appeal heard by leave given - under section 32, such party may within 7 days after the date of the decision apply to the Court of Appeal for leave to appeal and, if the Court of Appeal considers that a question of law of general public importance is involved, it may grant leave."

it would-allow only an -appeal from a decision of the High Court after the hearing of a substantive appeal but avail the applicants not at all. Both the order of 27th July and the subsequent judgment and order of Mayo, J. would be null and void. The awards of the Tribunal would in any event stand.

16. Section 35A can on no basis of construction give or have given this Court jurisdiction to entertain both the applications which have successively been made.

17. Having now heard argument I have no hesitation in agreeing with my Lords the Vice-President and Fuad, J. A. that the construction which truly gives effect to the intention of the legislature is that which involves the introduction of the words "following an appeal heard by leave given" after "appeal" in section 35(1) and (2) and after "Court" in section 35A. My concern has been as to the legitimacy of reading into an ordinance words which are not expressly included in it. Lord Diplock in Jones v. Wrotham Park Estates ⁽²⁾ at pp. 105 and 106 explained the three conditions which alone permit such an approach:

First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and Parliament had by inadvertence over-looked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law. Unless this third condition is fulfilled any attempt by a court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed. Such an attempt crosses the boundary between construction and legislation. It becomes a usurpation of a function which under the constitution of this country is vested in the legislature to the exclusion of the courts."

18. In the context of an analogous constitution I am satisfied (1) that it was the purpose of the Ordinance to provide in certain circumstances an appeal from the High Court after, and only after, the hearing of a substantive appeal from the Tribunal and (2) that the draftsman and the legislature overlooked the ambiguity in the wording of sections 35 and 35A which must be remedied if that purpose is to be achieved. I am certain (3) that the words that would have been inserted are as already set out.

19. For these reasons I too would strike out the instant application.

(1) [1970] Ch. 506

(2) [1980] A. C. 74

8th February 1985

Representation:

J. D. Donnelly Q. C. & B. Sceats (Job Young & Co.) for respondent

Judy Barnes (Chan, Yung & Chung) for applicants Nos. 12 and 15

Judy Barnes (D. L. A.) for applicant No. 16