Sunny Tadjudin v. Bank of America, National Association

DCEO 4/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO. 4 OF 2009

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BETWEEN

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DECISION

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Introduction

1.This is the Defendant’s application to strike out certain paragraphs of the Plaintiff’s Amended Statement of Claims under O.18, r.19 of the Rules of the District Court (“RDC”) on the ground that the Plaintiff’s claims based on the relevant pleaded acts are time barred under section 86(1) of the Sex Discrimination Ordinance, Cap 480 (“SDO”). 

2.Alternatively, the Defendant asks this court to determine, under Order 14A of the RDC, as a matter of law whether the Plaintiff’s claims based on the alleged acts before 17 February 2007 are time-barred under section 86(1) of the SDO.

3.In this action, the Plaintiff claims under section 76 of the SDO for alleged unlawful acts of discrimination against her during her employment with the Defendant in the period from year 2000 until her dismissal on 30 August 2007.  She alleged that she has all along been treated less favourably than the Defendant would treat her male comparators, in terms of employment terms, remunerations, benefits, promotion opportunities etc., on the ground of her sex.

4.Section 86 of the SDO provides, inter alia, that:

(1) The District Court shall not consider a claim under section 76 unless proceedings in respect of the claim are instituted before the end of the period of 24 months beginning-

(a) when the act complained of was done; or

(b) if there is a relevant report in relation to that act, with the day on which the report is published or made available for inspection under section 73,

whichever is the later.

(2) …

(3) Notwithstanding subsections (1) and (2), the District Court may consider any claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.

(4) …

(5) For the purposes of this section-

(a) where the inclusion of any term in a contract renders the making of the contract an unlawful act, that act shall be treated as extending throughout the duration of the contract;

(b) any act extending over a period shall be treated as done at the end of that period; and

(c) a deliberate omission shall be treated as done when the person concerned decided upon it,

and, in the absence of evidence to the contrary, a person shall be taken for the purposes of this section to decide upon an omission when he does an act inconsistent with doing the omitted act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the omitted act if it was to be done.

5.As the date of the Writ is 16 February 2009, the Defendant contends that any pleaded acts of discrimination committed before 17 February 2007 should be struck out.

6.For the purpose of this application, no affidavit evidence was filed by either party. 

7.Ms Cruden, counsel for the Plaintiff, submitted that the present application can only be viewed as an application under O.18, r.19 (1), on the ground that the Plaintiff’s claims disclose no reasonable cause of action, as no evidence has been filed by the Defendant.  On the other hand, Mr. Man, counsel for the Defendant, maintained that the relevant paragraphs should be struck out on any grounds under the rule.

8.Shortly before today’s hearing, the Plaintiff took out a summons to dismiss or strike out the Defendant’s summons.  As I have intimated to counsel at the hearing, the Plaintiff’s summons is in my view unnecessary as the Plaintiff can simply ask the court to make the same orders at the hearing of the Defendant’s summons without taking out an additional summons.

9.As I perceived, the essential consideration in the present application is whether the alleged discriminatory acts can be regarded as “acts extending over a period” under subsection 5(b).  In considering this issue, I do not see much difference in whether the Defendant is relying on O.18, r.19 (1) or O.18, r.19 (2) or both.

10.Ms Cruden submitted that the relevant acts are series of discriminatory acts extended to the date of dismissal of the Plaintiff.  Ms Cruden asked this court not to view each complaint on isolation and the acts are, as pleaded, interlinked acts pointing to the fact that the Defendant had as a matter of practice discriminated the Plaintiff as a female throughout.

11.On the other hand, relying on the Court of Appeal case of Tsang v Cathay Pacific[1], Mr. Man submitted that in order to constitute “acts extending over a period”, the relevant acts must be capable of forming a policy, regime or state of affairs.

12.It is Mr. Man’s view that, as the Court of Appeal and this court had, on determination of the Plaintiff’s application for amendment of the Statement of Claims, ruled that the Plaintiff could not make out a case of general policy or practice of discrimination against female, the Plaintiff can in no way suggest that those alleged acts constitute a policy, state of affairs or regime in discrimination against the Plaintiff as a female.

Discussion

13.It is trite that only in plain and obvious cases that the court would use its power to strike out a party’s claims or pleadings before trial.

14.As agreed by Mr. Man, should this court find that there are factual issues to be resolved before it can decide on whether the acts complained of are “acts extending over a period” and hence, whether the relevant claims pertaining thereto are time-barred, those pleas should not be struck out at this stage.

15.Mr. Man submitted that an act does not extend over a period simply because it has continuing consequences[2]. There is an act extending over a period if there is a continuous discriminatory practice or policy; and a discriminatory act is done pursuant to such practice or policy.  He referred this court to the Court of Appeal’s decision in Tsang v Cathay Pacific[3] where Mayo V-P (as he then was) considered Owusu v London Fire and civil Defence Authority[4] and Cast v Croydon College[5] and said[6]:

“at least in the case of discrimination in the field of employment – that it is the existence of a policy or regime, not a specific act of an employer triggering its application to the complainant, that matters.”

16.Mr. Man submitted that as there is no plea of a general discriminatory policy against female in the Plaintiff’s case, the alleged unlawful acts complained of by the Plaintiff are clearly “one-off” acts which can in no way be regarded as acts extend over a period.

17.In Tsang, the plaintiff’s complaint was that the normal retirement age of a female flight attendant was 40 but that of a male flight attendant was 55.  The Court of Appeal held that there was a discriminatory policy in place with reference to which decisions were taken from time to time and the discrimination suffered by the plaintiff was not a “one-off” act.

18.The discriminatory policy referred to in Tsang was a general policy applicable to all female flight attendants in the same position as the plaintiff.  Mr. Man is correct in saying that the Plaintiff in the present case is not allowed to plead such a general policy and the situation in this case is different.

19.However, I do not see that the Court of Appeal has limited the scope of the phrase “acts extending over a period” only to acts constituting a general policy or regime for discrimination.   Here I mark the difference between a general policy of discrimination against all female employees and a practice to discriminate against the complainant as in Owusu.

20.Mr Owusu, who is of Ghanian national origin, was employed as a fire safety caseworker.  He complained that his employer has racially discriminated against him for failure over a number of years to regrade him and to give him an opportunity to act up when opportunities arose. The Industrial Tribunal held that the acts complained of by Mr Owusu were “one-off” acts as against “continuing acts” which were time-barred under section 68 of the Race Relations Act, which is similar to section 86 of the SDO.  On appeal, the Employment Appeal Tribunal has the following views[7]:

“A specific decision not to upgrade may be a specific act with continuing consequences. The continuing consequences do not make it a continuing act. On the other hand, an act does extend over a period of time if it takes the form of some policy, rule or practice, in accordance with which decisions are taken from time to time. What is continuing is alleged in this case to be a practice which results in consistent decisions discriminatory of Mr Owusu.

It would be a matter of evidence for the tribunal as to whether such a [discriminatory] practice…in fact exists.  It may be that, when explanations are given by the respondents, it will be shown that there is no link between one instance and another, no linking practice but a matter of one-off decisions with different explanations which cannot constitute a practice.”   

21.The same sentiment has been expressed by the English Court of Appeal in Commissioner of Police of the Metropolis v Hendricks[8], in allowing the appeal from the determination of the Employment Appeal Tribunal on the preliminary issue that the claims were time barred[9] :

“[Miss Hendricks] is, in my view, entitled to pursue her claim beyond this preliminary stage on the basis that the burden is on her to prove, either by direct evidence or by inference from primary facts, that the numerous alleged incidents of discrimination are linked to one another and that they are evidence of a continuing discriminatory state of affairs covered by the concept of “an act extending over a period”…

At the end of the day Miss Hendricks may not succeed in proving that the alleged incidents actually occurred or that, if they did, they add up to more isolated and unconnected acts of less favourable treatment by different people in different places over a long period and that there was no “act extending over a period” for which the commissioner can be held legally responsible as a result of what he has done, or omitted to do, in the direction and control of the service in matters of race and sex discrimination.  It is, however, too soon to say that the complaints have been brought too late.

I appreciate the concern expressed about the practical difficulties that may well arise in having to deal with so many incidents alleged to have occurred so long ago; but this problem often occurs in discrimination cases, even where the only acts complained of are very recent.  Evidence can still be brought of long-past incidents of less favourable treatment in order to raise or reinforce an inference that the ground of the less favourable treatment is race or sex.”

22.The Court refrained from taking a too literal approach in understanding the language of the authorities on “continuing acts” and said[10]:

“The concepts of policy, rule, practice, scheme or regime in the authorities were given as examples of when an act extends over a period.  They should not be treated as a complete and constricting statement of the indicia of “an act extending over a period”…the appeal tribunal allowed itself to be side-tracked by focusing on whether a “policy” could be discerned.  Instead, the focus should be on the substance of the complaint that the commissioner was responsible for an ongoing situation or a continuing state of affairs in which female ethnic minority officers in the service were treated less favourably. The question is whether that is “an act extending over a period” as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed.”

23.The acts of discrimination complained of by the Plaintiff in this matter spanned over some years.  Under paragraph 17 of the Amended Statement of Claims, the Plaintiff avers that “by virtue of the Defendant’s continuous and/or interlinked acts of sex discrimination against the Plaintiff, the Plaintiff had throughout her employment with the Defendant been discriminated against and received (1) less favourable treatment than her male comparator(s) on the ground of her sex in respect of, inter alia, terms of employment, remuneration (monthly salaries, housing allowance and annual bonuses); and (2) less access to opportunities for promotion, facilities or services.”

24.Under paragraph 18, the Plaintiff further avers that “by virtue of the Defendant’s continuous and/or interlinked acts of sex discrimination against the Plaintiff, the Plaintiff had throughout her employment with the Defendant, been subject to various detriments.  The Defendant eventually dismissed the Plaintiff on a pretext.”

25.Particulars of acts of sex discrimination are then given under paragraph 19 of the Amended Statement of Claims, some of which committed before 17 February 2007.

26.It would be obvious that the Plaintiff’s case is that she has been discriminated, as a matter of practice, throughout her employment in various aspects.  Those alleged acts of discrimination particularised under paragraph 19 were not formulated as isolated and unconnected acts to found a claim on its own.  It may or may not be that the acts are found to be so at the end of the day, after the court has been presented with sufficient evidence.  However, sharing the same sentiment of the courts in Owusu and Hendricks, it is in my view too early at this stage to conclude that the alleged acts can in no way be continuing acts.  

27.Besides, as I have pointed out to Mr. Man at the hearing, section 86(1) of the SDO only bars claims based on the pleaded acts.  It does not mean that any alleged discriminatory acts committed more than 24 months from the date of the Writ must be struck out, even if those acts are relevant to the issues. 

28.In my view, the alleged acts of discrimination committed before 17 February 2007 can at least be of relevance to raise or reinforce an inference of discrimination. 

29.I do not think that there is sufficient ground to prevent the Plaintiff from pleading those alleged acts in the Amended Statement of Claim.

30.In the circumstances, I refuse the Defendant’s application to strike out the relevant paragraphs of the Amended Statement of Claim. 

31.As there are factual issues involved, it is in my view inappropriate to determine under Order 14A the issue as requested. 

32.The Defendant’s summons is accordingly dismissed.

33.For reasons as mentioned under Paragraph 7 hereinabove, the Plaintiff’s summons is dismissed with no order as to costs.

34.I would make an order nisi that the Defendant is to pay the Plaintiff’s costs of the Defendant’s application, with certificate of counsel. Costs would be assessed summarily. The Plaintiff’s solicitors are to serve their statement of costs within 7 days upon the costs order nisi becoming absolute, and the Defendant’s solicitors may respond to this within 7 days of service of the bill. The summary assessment of costs will be made on the papers unless otherwise directed.

35.Parties are to seek directions for further conduct of this action by way of a joint letter within 21 days from the date of this Decision.

Ms Liza Jane Cruden instructed by Messrs William K W Leung & Co, for the Plaintiff

Mr Bernard Man, instructed by Mayer Brown JSM, for the Defendant

Please refer to HCMP691/2012 for the relevant appeal(s) to the Court of Appeal.