Read the full judgment text of CACV 146/2010 on BabelCite. This Court of Appeal judgment was delivered on 18 February 2011 before Le Pichon JA, Cheung JA, Yuen JA.
Civil procedure – strike out application under Order 18 Rule 19 of the Rules of the High Court – jurisdiction of Labour Tribunal under s.10(1) of the Labour Tribunal Ordinance – loss of salary claim for constructive dismissal within exclusive jurisdiction of Labour Tribunal – Court of First Instance has no jurisdiction – claim against trustee of retirement benefits scheme – claim must be brought against employer as part of damages for constructive dismissal – rectification of Membership Termination Form not relief sought in HCA 2186 – plaintiff former cabin attendant resigned in April 2006 claiming allergy to aircraft spray – Labour Tribunal proceedings LBTC 3235 of 2006 – loss of salary claim withdrawn October 2006 – retirement benefits claim dismissed 2008 – Poon J allowed appeal and ordered retrial 13 August 2009 – issuance of HCA 2186 in October 2009 by plaintiff in person – transfer of Labour Tribunal proceedings to Court of First Instance without restoring loss of salary claim – plaintiff's erroneous belief that writ placed claim before court – bad faith not established – costs order requiring plaintiff to pay 50% of CPA's costs of striking out application assessed at $42,300 payable forthwith – exercise of discretion – 'duplication' reasoning not supported by chronology – plaintiff should not be penalised for jurisdictional confusion – variation to no order as to costs – costs of appeal nisi no order as to costs – material non-disclosure – Master Ng granted leave to file further affirmation only – complaint that judge failed to rule on non-disclosure misconceived – contempt of court – Order 52 RHC procedure not invoked – committal application cannot be made directly to Court of Appeal – must be made in Court of First Instance – no merit in complaint – appeal allowed in part – §4 of 15 June 2010 order varied to no order as to costs – nisi order for no order as to costs of appeal.
Legal issues: Jurisdiction of Court of First Instance over loss of salary claim · Striking out claim against trustee of retirement benefits scheme · Costs order against plaintiff for striking out application · Alleged failure to deal with material non-disclosure application · Alleged failure to deal with contempt of court complaint
Outcome: Appeal allowed in part: the Court of Appeal varied §4 of the 15 June 2010 order by substituting an order that there be no order as to costs, and made a nisi order that there be no order as to costs of the appeal.
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