Lin Kam Ching v. Kui Yen Co

HCMP001737/1984

Headnote

BETWEEN

Coram: Hon. C.J., Cons & Fuad, JJ.A.

Date: 30th September, 1983.

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JUDGMENT

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Cons, J.A. :

1. The short point in this appeal is what should a person do when he learns, as did the defendant in this case, from the appearance of the Bailiff on his door step that judgment has been given against him in the Labour Tribunal in proceedings of which he had not received the slightest intimation.

2. Were the proceedings in the High Court, the unfortunate person would immediately apply to a judge to have the decision set aside : provision is made for this in Order 35 rule 2. The same would happen in the District Court, for although there is no express provision in the District Court rules, the residuary provision in Rule 9 would bring in the High Court Practice.

3. But in neither the Labour Tribunal Ordinance nor the Rules made thereunder is there any special or general provision. There is provision for review, but it is limited to 14 days. The appellant knew nothing of the present award until after 7 months.

4. What he did then, having very sensibly paid what was demanded by the Bailiff, was to apply to the District Court. He did so because the Labour Tribunal has no means of its own to enforce its awards.   In this respect it has to rely on the District Court. This is provided by Section 38 of the Labour Tribunal Ordinance -

5. In the present instance the award had been registered with the Victoria District Court and thereby became a judgment of that court. The defendant argued before the judge below that therefore the Victoria District Court was the proper court to set aside the judgment. The judge took a different view. He said : -

"Apart from an appellate court no court can set aside the order of another court."

(Appeals now lie from the Labour Tribunal to the High Court.)

6. There is authority referred to in the White Book (1) that the High Court can in such circumstances entertain an appeal, but I see for myself no reason why an application to set aside should not be made to the District Court, provided that the award has been registered. It is not a question of setting aside the decision of another court because that other court is thought in some way or other to have gone wrong.  It is one of setting right an injustice which is possibly due to no person's fault at all.

7. Taking a strict view there might be thought to be some difficulty in reconciling Sec. 38 with the recently amended provisions of Secs. 32 & 35 (which provide for an appeal from the Tribunal to the High Court) for if on registration an award becomes a judgment "for all purposes" it could be argued that "all purposes" include that of appeal, which would then be to this court.

8. In so far as there is such a conflict, the special provision governing appeals would prevail over the general provision that a registered judgment should have effect as if it were a District Court judgment. But this does not mean that the general provision is ineffective for other purposes, including the setting aside of an award of the Tribunal in appropriate cases.

9. In my view the intention of the Legislature was that once an award had been registered all matters which relate to it should be dealt with in the District Court, except an appeal against the actual award itself. If that is so, then the District Court does have power to set the award aside in circumstances like the present and for my part I think that is the better course to adopt.

10. From the affidavits that have been filed in these proceedings I am satisfied that the defendant in fact had no knowledge of the proceedings in the Tribunal and has a defence which, if it is believed, would be a complete answer to what appears to be the plaintiff's claim.   would set aside the judgment in the District Court and remit the matter to the Labour Tribunal to be heard afresh.

(1) 35/2/2

Roberts, C.J.:

11. I agree.

Fuad, J.A.:

12. I also agree.

(The Court heard argument as to the costs.)

Roberts, C.J:

13. We are of the opinion that in the peculiar circumstances of this case we should order that the appellant have his costs here and in the District Court below provided that the plaintiff's claim in the Labour Tribunal is withdrawn or dismissed, but not otherwise.

Cons, J.A. :

14. I would like to add a word as to the costs.

15. This was e comparatively simple appeal on a pure point of law, yet two bundles of documents have been filed, the original containing 14 pages, the supplementary 70 pages. Only 9 of those pages have been referred to in argument.

16. I appreciate the difficulties of Counsel in advising what documents should be left out of those originally produced in the court below, because appeals may take unexpected turns and Counsel may wish to have the papers there in readiness. But in the present appeal some of the papers would not have helped whatever happened; for example, those which initiated the proceedings before the Labour Tribunal, the material parts of which remain in untranslated Chinese characters.

17. It also seems to me unlikely that there could ever have been a need to refer to the affidavit of service on the Respondent of the original bundle of documents. I question whether there was any need to make and file such an affidavit in the first place. But if so was there any real need to attach to it photostatic copies of all 14 pages of the bundle? I know that the books of precedents suggest that where an affidavit of service is filed there should be exhibited thereto a true copy of the document itself. I cannot think the learned authors had appeal bundles in mind. Furthermore there cannot possibly have been a need to reproduce the whole yet once again in each of the three supplementary bundles subsequently filed.

18. We are told that those representing the Appellant were minded to play extra safe in this instance as they were apprehensive that the Respondent would not appear at the hearing; as in fact happened. How far they were justified may be a matter for the Taxing Master. I am pleased to note that if he also thinks they went too far, Counsel has confirmed that the unnecessary costs will not be passed on to the lay client.

Representation:

K.L. Lui (M/S Tai, Tang & Chong) for Defendant.

Plaintiff absent.