Dias Sandra Mary Elizabeth v. Cathay Pacific Airways Ltd

HCA 2372/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 2372 OF 2002

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Before : Deputy High Court Judge M Chan in Court

Dates of Hearing : 2 and 5 March 2012

Date of Decision : 5 March 2012

Date of handing down Reasons for Decision : 6 March 2012

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REASONS FOR DECISION

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1.These proceedings were transferred from the Labour Tribunal to the High Court in 2002. According to the Re‑re‑re‑Amended Statement of Claim, the plaintiff seeks damages from the defendant, her former employer, in respect of what she claims to be wrongful dismissal. The damages (in the total of $7,713,028.40) represent, firstly, the alleged shortfall between be amount which the plaintiff received by way of a Retirement Grant following the termination of her employment and the amount of the grant to which the plaintiff claims she was contractually entitled, and the value of the Retirement Travel Benefit to which the plaintiff says she is entitled.

2.The trial was initially fixed to take place on 11 January 2010 before Burrell J.  It was adjourned to a date to be fixed, pending judgment to be handed down by the Court of Appeal in a case involving another employee of the defendant, wherein issues concerning the interpretation of the conditions of service which govern the plaintiff’s employment with the defendant were dealt with.  The Court of Appeal’s judgment was handed down in the case concerned (CACV7 / 2010) on 17 November 2010.  The parties then applied for the trial dates in this action to be fixed, and on 7 December 2010, the court informed the parties of the trial dates which were to commence on 19 September 2011 (with 6 days reserved), and of the pre‑trial review being scheduled for 13 July 2011(subsequently changed to 21 July 2011).

3.Ever since the transfer of the proceedings to the High Court, the plaintiff had been represented by solicitors and counsel on legal aid. On 24 May 2011, her legal aid was discharged and a certificate was filed in court to such effect.  On 15 July 2011, notice was filed to the effect that legal aid had been restored to the plaintiff.

4.On 21 July 2011, the pre‑trial review took place as scheduled but the hearing was adjourned.  In allowing the adjournment, the court awarded costs against the plaintiff.  The adjourned pre‑trial review was ultimately held on 1 August 2011 before Sakhrani J, when the plaintiff was still represented by Counsel.  The trial days were reduced to 3.  As a result of the judgment of the Court of Appeal, the issues in dispute between the plaintiff and the defendant in this case have been narrowed.

5.The Legal Aid Certificate issued to the plaintiff was finally discharged on 12 August 2011.  On the first day of trial on 19 September 2011, the plaintiff appeared in person and sought an adjournment of the trial, to appeal against the discharge of legal aid to her.  I granted the adjournment for a period of 6 weeks, but made it clear to the plaintiff that there would be no further adjournments of the trial.

6.The dates for the adjourned trial were fixed in October 2011. They were so fixed in the plaintiff’s absence, as she failed to turn up despite appointments made with her by the defendant’s solicitors.  The trial was scheduled to take place on 2, 5 and 6 March 2012.  The plaintiff was notified of these dates by a letter dated 7 October 2011 from the defendant’s solicitors, and by the court by a notice dated 10 October 2011.

7.In the afternoon of 1 March 2012, the court received a fax from the defendant’s solicitors at 4:17 pm, enclosing a letter from the plaintiff dated 1 March 2012 (“1^st Letter”).  The plaintiff stated in her letter that she had “a long history of a recurring back and upper respiratory tract infection (allergic)”, and was unable to appear in court the next day.  The plaintiff enclosed a sick leave form issued by the Hong Kong Central Hospital Ltd, dated 1 March 2012, stating that the plaintiff was recommended for 4 days of sick leave from 2 March to 5 March 2012 for “back pain /URTI”.  In the 1^st Letter, the plaintiff asked that the trial be postponed until she was “sufficiently well to prepare for trial”.

8.I issued directions in writing on 1 March 2012, that the parties should attend court on 2 March 2012, as scheduled, when the court will hear submissions on how the matter should proceed.  The plaintiff was informed of my direction when she telephoned the court to inquire about the trial dates.

9.On the morning of 2 March 2012 (Friday), the plaintiff sent a fax to the court (“2nd Letter”), in which she stated that “some time ago”, she had re‑ignited her frequent back pain, which had “got worse over the next few weeks”.  The plaintiff stated in the 2^nd Letter that she had called “999”, was pronounced “70% paralysed” and had to be taken to the hospital.  The plaintiff stated in the 2^nd Letter that she had promised to avoid such pain again, and hence was not able to appear in court on 2 March 2012.  She also stated that during her service with the defendant, she had suffered from coughing spasms due to the dry air in aircrafts, which is similar to the air in the court room.

10.On 2 March 2012 when the trial commenced, the defendant objected to the adjournment sought by the plaintiff.

11.I did not grant the plaintiff’s application to postpone the trial fixed to commence on 2 March 2012, and which was scheduled for 3 days. My reasons were :

(1) These proceedings had been commenced in 2002, and had been pending for some time;

(2) The trial dates had already been adjourned once in September 2011 on the plaintiff’s application, when I had indicated that there should be no further adjournment;

(3) The trial dates in March 2012 had been fixed some months before in October 2011, and the plaintiff had notice of these trial dates;

(4) There was limited information available from the sick leave certificate dated 1 March 2012 as to the plaintiff’s condition and her fitness to attend court on the days fixed for trial;

(5) The 2^nd Letter did not state when it was that the plaintiff had suffered the condition she had referred to when she had to be taken to the hospital;

(6) The court should not grant an application by a party to vary a trial date, which is a milestone date, unless there are exceptional circumstances to justify the variation;

(7) The underlying objectives of the Civil Justice Reform are (inter alia) to ensure that cases are dealt with expeditiously, and that the resources of the court are distributed fairly.

12.Instead, I adjourned the trial to 5 March 2012 (Monday), so that the plaintiff could rest over the weekend, and directed the plaintiff to appear in court at 10 am on 5 March 2012 to produce a medical report from her doctor, which should state when the plaintiff was examined by the doctor, her current medical condition and whether she was fit to attend court the following week, and if not, why not. I further directed that if the plaintiff was unable to attend court on 5 March 2012, she should procure her doctor to attend court at such time as may be convenient to the doctor on Monday morning, to provide the required information to the court.  The plaintiff’s solicitors undertook to the court to promptly notify the plaintiff of the directions made by the court in the morning, and to point out to the plaintiff that the court would accommodate her in so far as reasonably practicable, by providing her with periodic rest periods during the hearing, and not requiring the plaintiff to stand up to address the court.  It was also pointed out that if necessary, the plaintiff could come to court in a wheelchair.  Finally, I directed that if neither the plaintiff nor her doctor should appear in court on 5 March 2012 as directed, the trial may proceed in the plaintiff’s absence.

13.On 2 March 2012, the defendant’s solicitors notified the plaintiff of the directions made by the court, by e‑mail and by letter delivered to the defendant's address.  This is evidenced by the 2 affirmations filed by the defendant’s solicitors.

14.In the morning of 5 March 2012, the court received a fax dated 5 March 2012 from the plaintiff (“3rd Letter”).  She indicated that she was unwilling to disregard medical advice about serious health issues that had previously landed her in hospital, and she would accordingly continue her medication and rest as advised by her doctor.  She further recorded her objection to various things, including being threatened with costs and dismissal of the case if she did not attend court while still on strong medication and certified sick leave.

15.The defendant opposed further adjournment, and referred to evidence of the fact that when the representative of the defendant’s solicitors served letters on the plaintiff in the afternoon of 2 March 2012, the plaintiff had, at about 2 pm, answered the door to her premises without any walking stick or crutches or wheelchair and, thereafter, had left the premises.

16.I was not satisfied that the plaintiff had established that her condition was such that she was not able to attend court on 5 and 6 March 2012, and that there were indeed exceptional circumstances which justified a further adjournment of the trial.  I bore in mind the history of this case, the factors already set out in paragraph 11 above, and the fact that directions had already been made on 2 March 2012, which the plaintiff chose to ignore.  I ordered that the trial should proceed in the plaintiff’s absence.

17.The defendant then applied under Order 32 rule 1 (2) to dismiss the plaintiff’s claim.  I granted the defendant’s application, with costs of the action to the defendant.

18.I indicated that my reasons for the orders made will be handed down, and these are my reasons.

19.As the defendant had made a sanctioned payment into court on 10 October 2008, I further granted an order on the defendant’s application for the amount to be paid out to the defendant with interest, with costs to the defendant on an indemnity basis from 1 November 2008.

The plaintiff in person, absent

Mr Ashley Burns, SC, instructed by Mayer Brown JSM, for the defendant