Dataprep (HK) Ltd v. Kuo Chi Yung Peter
Read the full judgment text of CACV 16/1974 on BabelCite. This Court of Appeal judgment.
1. On December 19th, 1973 the respondent, Peter Kuo, filed a claim against the appellants, Dataprep (H.K.) Limited, before the Labour Tribunal for $98,281. The respondent had been in the employ of the appellants and the claim was stated to be made up of salary and commission earned by the respondent but not paid by the appellants during the period of employment.
Cited by 7 cases
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CACV000016/1974 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO. 16 OF 1974 -----------------
Coram: Briggs, C.J., Huggins & Pickering, JJ. Date of Judgment: 28th August, 1974. ----------------- JUDGMENT ----------------- 1. On December 19th, 1973 the respondent, Peter Kuo, filed a claim against the appellants, Dataprep (H.K.) Limited, before the Labour Tribunal for $98,281. The respondent had been in the employ of the appellants and the claim was stated to be made up of salary and commission earned by the respondent but not paid by the appellants during the period of employment. 2. Provided the claim was within the jurisdiction of the Labour Tribunal this was the only course open to the respondent by virtue of section 7(2) of the Labour Tribunal Ordinance. 3. The procedure for dealing with a claim filed before the Labour Tribunal is laid down in the Labour Tribunal Ordinance and was properly followed in this case. Thus CHAN King-fan, a tribunal officer, prepared and filed a summary of facts relating to the claim together with a Certificate of Conciliation. The Certificate states that the respondent has refused to take part in conciliation. The summary of facts clearly shows that there were several matters of fact in dispute between the parties. There were also serious differences between them as to the correct interpretation of the terms of the contract of employment of the respondent. 4. The matter came before the presiding officer of the Labour Tribunal on February 5th, 1974. The president was informed by CHAN King-fan that though he had filed the summary of facts he had not completed his investigations into what was an exceptionally complicated claim. The appellants stated that the company wished to bring a counterclaim against the respondent for $4,136.35 which represented certain over-payments made by the company to the respondent. 5. For these reasons the presiding officer exercised his power under section 10 of the Labour Tribunal Ordinance and transferred the claim to the Supreme Court. In doing so he also took into consideration that the claim was for a large sum of money and that the summary of facts tended to show that part of the claim arose more than six months before the claim was filed. In such claims the Tribunal has no jurisdiction save in special circumstances which do not apply here. (This limitation on the jurisdiction of the Tribunal is contained in section 9(1) of the Ordinance). 6. After an abortive hearing before the Supreme Court on March 3rd, 1974, where the court made it clear that it took the view that the procedure laid down for a claim to be tried in the Labour Tribunal should be followed in the Supreme Court, the matter came on for trial on March 30th, 1974. The parties were represented by counsel and certain preliminary points were argued on which the court made a ruling. The court held that though the claim was then before the Supreme Court the Rules of the Supreme Court did not apply. It was unnecessary for the respondent to issue a writ. The claim would be dealt with procedurally as if it were being tried before the Tribunal. For this proposition reliance was placed on rule 7(2) of the Labour Tribunal (General) Rules. 7. The court, however, held that despite the provisions of the Labour Tribunal Ordinance the language of the proceedings before the Supreme Court must be English and that counsel had a right of audience. 8. In effect, therefore, the court held that proceedings in a claim transferred to the Supreme Court should be tried in accordance with the provisions of the Labour Tribunal Ordinance with the two exceptions mentioned above. 9. Against that ruling the appellants have appealed. 10. It will be convenient to deal with what I have called the two exceptions now. 11. The Official Language Ordinance 1974 provides that "proceedings in the Supreme Court shall be conducted in the English language." That Ordinance also provides that proceedings conducted before the Labour Tribunal may be either in Chinese or in English. The matter need detain us no further. 12. Section 23 of the Labour Tribunal Ordinance gives a right of audience to certain persons before the Tribunal and expressly denies a right of audience to barristers and solicitors unless, of course, they are themselves claimants, before the Tribunal. 13. The court held that this section did not debar a barrister or a solicitor from appearing in the Supreme Court in proceedings which had been transferred from the Labour Tribunal. In my view the court was correct in taking this view. What the Labour Tribunal Ordinance seeks to do is to ensure that a claim which is transferred to the Supreme Court is conducted in accordance with the practice and procedure laid down in the Ordinance for conducting claims before the Tribunal. The claim and the inquisitorial procedure of the Tribunal are transferred together to the Supreme Court. 14. But the right of audience is another matter. It is not a question of practice and procedure. The Legal Practitioners Ordinance confers certain monopolistic rights of audience upon members of the legal profession and these remain unaffected by the provisions of the Labour Tribunal Ordinance. 15. The first ground of appeal is that rule 7(2) of the Labour Tribunal (General) Rules is ultra vires the rule-making power contained in section 45 of the Labour Ordinance. 16. Rule 7(2) reads as follows:-
17. In the circumstances of this case 'the court' means the Supreme Court. 18. The relevant portions of section 45 of the Labour Tribunal Ordinance read thus:-
19. The Labour Tribunal (General) Rules were made by a previous Chief Justice. In my view, and it is a view I have expressed before, rule 7(2) is well within the provisions of the rule-making power. 20. The Labour Tribunal Ordinance does not provide for the procedure to be adopted in a court to which a claim is transferred. This is what rule 7(2) seeks to do. And as such it is well within the general scope of the intention of the Ordinance. The rule assists in carrying out the provisions of the Ordinance. If it had been intended that the Rules of the Supreme Court should apply to transferred claims why make provisions for a transfer at all? Why not have a provision for declining jurisdiction without more, or perhaps with a provision such as is contained in section 9(3) of the Ordinance which would leave the institution of further proceedings to the parties themselves. 21. The whole scheme of the Ordinance is designed to set up a procedure, which would be both inquisitorial and informal, for the settling of labour disputes. That procedure is delineated in detail. First, tribunal officers examine the claim, and try to effect conciliation between the parties. When the matter comes before the Tribunal, the presiding officer is given wide powers of investigation. The procedure is designed for a speedy decision and the right of appeal is curtailed. 22. And finally, the Ordinance provides that 'the rules of evidence' shall not apply to proceedings in the tribunal. 23. At the hearing of the appeal, considerable time was spent in discussing the right of and effect of an appeal from the decision of the Labour Tribunal. The right of appeal is severely limited in the Ordinance. The appeal now before this court is not concerned with an appeal from the decision of the Labour Tribunal, it is concerned with wholly another matter, i.e. a transfer of a claim by the Tribunal to the Supreme Court. Such a transfer is not an appeal from the Tribunal. Indeed, the Tribunal has not determined any issue. Furthermore, though there is a right to an appeal, albeit a limited right, there is no right to a transfer. A transfer is a distinct and separate proceeding, a projection into the Supreme Court of the jurisdiction and procedure of the Labour Tribunal. 24. It seems to me that what the Ordinance intends is that upon the transfer of a claim being made to the Supreme Court, all the provisions of the Ordinance mentioned above, apply. There is still the same urgency. As I have said above the claim and the procedure for conducting that claim are transferred to the Supreme Court, ousting the ordinary rules of practice and procedure of that court. 25. It has been urged that since rule 7(2) conflicts with the Rules of the Supreme Court, that a clear direction of the Legislature is necessary before the Rules of the Supreme Court can be brushed aside as it were. 26. I know of no authority to suggest that the Rules of the Supreme Court are more sacred or of greater weight than any other subsidiary legislation known to the law. Nor that the Rules Committee established under the Supreme Court Ordinance is a more potent body than any other rule-making body established by the Legislature. 27. It is true that the Rules of the Supreme Court are made under section 38(1) of the Supreme Court Ordinance which is drafted in the widest possible terms. But this does not preclude other rule-making bodies making rules for that court if empowered to do so by an Ordinance. All rules made under any Ordinance in Hong Kong are laid on the table of the Legislative Council. The Rules of the Supreme Court were passed in 1967 though they have been amended from time to time since. The Labour Tribunal (General) Rules became law in 1973. They are, in my view, to be read as a gloss or as an exception to the Rules of the Supreme Court having been properly made in accordance with the provisions of the Ordinance. 28. The appellants ask this court to make an order that the proceedings transferred to the Supreme Court may only proceed in accordance with the Rules of the Supreme Court. I do not think that this court should make such an order. 29. This is, of course, a judgment dissenting from the judgments of the other two members of the court. I do not think that the Rules of the Supreme Court apply to a transferred claim. But if I am wrong and the Rules of the Supreme Court do apply to transferred proceedings, I agree with the other members of the court that it is not necessary for the respondent to issue a writ. The claim is already before the court having been transferred thereto. To issue a writ is one method of commencing proceedings in court. When proceedings have been commenced, no writ is necessary. 30. The other ground of appeal with which I think it is necessary to deal is the fourth ground, i.e. that as the Labour Tribunal had no jurisdiction to hear the claim it had no power to transfer it to the Supreme Court. The relevant section of the Ordinance is section 9(1) which reads as follows:-
31. In making his order for transfer the presiding officer of the Tribunal referred to the fact that part of the claim arose before the six months' statutory period. There was no agreement made by the parties under section 9(1) to confer jurisdiction on the Tribunal. Nor was an order made under section 9(2) severing that part of the claim which arose before the six monthly period from that which arose after such period. 32. It is enough for me to say that I agree with the other members of this court that in my view any tribunal or court has an inherent power to decide whether or not it has jurisdiction. This I believe to be the ratio decidendi of cases such as National Telephone Company Ltd. v. H.M. Postmaster-General(1). The Labour Tribunal in my view can so decide. If it decides it has no jurisdiction it can so rule. And the party who is aggrieved by that decision will be left to its remedy, which is in an appeal to the District Court on a point of law. The decision of the District Court being final by virtue of section 32(3) of the Labour Tribunal Ordinance. 33. On the other hand, I do not think that it is necessary that the Labour Tribunal must be satisfied that it has jurisdiction to entertain a claim before it makes an order declining jurisdiction and transferring that claim to the District or Supreme Court. 34. The relevant words of the section are:-
35. A very good reason for making an order for transfer could well be lack of jurisdiction or a doubt as to jurisdiction. 36. When therefore the Tribunal considers it lacks jurisdiction it can either so rule leaving the aggrieved party to appeal under section 32 to the District Court or it can make an order of transfer to the District or Supreme Court. 37. In my view the court below was not correct in urging the parties to reach an agreement under section 9 of the Labour Tribunal Ordinance with the suggestion that the Supreme Court would only have jurisdiction to hear a transferred claim if the Labour Tribunal itself had jurisdiction. To hold otherwise would mean that there would have to be further and fresh proceedings in the District or Supreme Court in accordance with section 9(3) of the Ordinance. 38. One point made during the arguments made on behalf of the appellants was that since, under section 38 of the Ordinance, a final award of the Tribunal is registered in the District Court and (in the words of that section) "becomes, for all purposes, a judgment of the District Court", that the normal avenues of appeal from the District Court onwards are open to an unsuccessful litigant once the final award is registered. This cannot be so. The Ordinance very strictly controls the right of appeal. Section 38 is only concerned with the enforcement of the registered judgment. 39. It follows from what I have said above that I would dismiss this appeal. Representation: C. Ching Q.C. & Bokhary (Wilkinson & Grist) for Appellant Donnelly (Hastings & Co.) for Respondent. (1) (1913) A.C. 546. IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO. 16 OF 1974 (On appeal from Labour Tribunal Claim No.879/73) -----------------
----------------- Coram: Briggs, C.J., Huggins & Pickering, JJ. Date of Judgment: 28th August 1974. ----------------- JUDGMENT ----------------- Huggins, J.: I shall deal first with the questions which have been raised as to the jurisdiction of this Court. As I understand it the contentions of the Respondent are two-fold, (i) that the validity of the transfer of the claim from the Tribunal to the Supreme Court could be questioned only upon an appeal to the District Court under s.32 of the Labour Tribunal Ordinance, and (ii) that, assuming the transfer to be valid, no appeal lies to the Full Court from the decision of the single judge. 2. The second of those contentions is based upon the absence of any provision in the Labour Tribunal Ordinance giving a right of appeal from the single judge. Mr. Donnelly relies upon The Attorney General v. Sillem (1864) 10 H.L.C. 704, but I do not think that helps him. It is not contested that
what is said by the Appellants is that legislative authority for this appeal is to be found in s.29 of the Supreme Court Ordinance. Subsection (1) enacts:
Subsection (3) has no application here. What is argued on behalf of the Respondent is that s.29 applies only to "the original civil jurisdiction" conferred by the Supreme Court Ordinance itself, and in support of that argument counsel cites Cheng Sau Tim v. Cheng Yiu Lam (1948) 32 H.K.L.R. 31. In that case a statute provided for an adjudication by a Land Officer of disputes relating to land in the New Territories and for an appeal from the Land Officer to a judge of the Supreme Court. It was held that the section which is now s.29 of the Supreme Court Ordinance did not permit a further appeal from the single judge to this Court. Speaking for myself I find some difficulty in appreciating the validity of the distinction which the Court drew between that case and National Telephone Co., Ltd. v. The Postmaster General 1913 A.C. 546, but the case can in any event be distinguished from the present, because the jurisdiction exercised by Mr. Commissioner Baber (as he then was) was an original and not an appellate jurisdiction. Had the Labour Tribunal Ordinance not been passed the present claim would undoubtedly have had to be tried in the Supreme Court and I do not think the Ordinance has changed the nature of the claim. Chan Wing On v. The Director of Public Works (No. 2) 1965 H.K.L.R. 192 was similarly a case where it was sought to appeal to the Full Court from a decision of a judge of the Supreme Court sitting on appeal from a statutory tribunal. In my view s.29 of the Supreme Court Ordinance is sufficiently wide to allow an appeal from a judgment of a judge of the Supreme Court trying, at first instance, a claim transferred by the Labour Tribunal under s.10(2) of the Labour Tribunal Ordinance: it was never intended that whilst, if the claim had been tried in the Labour Tribunal, an appeal would have lain under s.32(1) to the District Court (and possibly to the Full Court under s.34) there should be no appeal of any kind against the judgment of the District Court or Supreme Court following upon an order of transfer. I believe it was because machinery already existed for such an appeal that no express provision for it was made in the Labour Tribunal Ordinance. 3. The first of the Respondent's contentions, that the validity of the transfer to the Supreme Court could be questioned only upon an appeal to the District Court, is likewise based upon the principle that no right of appeal lies unless conferred by statute. I have already indicated that I do not doubt that principle, but nevertheless I cannot accept. In the first place I am by no means persuaded that an appeal would lie under s.32 against an order of transfer. The section reads:
The issue which arises is whether an order of transfer is a "determination" within the meaning of that section and in my view it is not. I recognize that a "determination" is not necessarily "a final award or order", a phrase appearing in s.38, but an order of transfer certainly does not determine the claim: it determines no dispute between the parties of any kind but merely that part of the hearing of the claim conducted in the tribunal. I see no inconsistency between s.32 and s.38: clearly "a final award or order of a tribunal" which is subsequently set aside on appeal to the District Court ceases to be one which should be registered for the purpose of enforcement, however unhappy the language of the statute may be. I go further. In my view s.10(1) is in such terms that it is doubtful whether it could ever be said that an order of transfer was made without jurisdiction. That subsection reads:
It is contended that before it can "decline" jurisdiction a tribunal must have the jurisdiction which it declines. I do not agree: in my view it would be a good reason for declining "to enquire into, hear and determine" a claim that the presiding officer of the tribunal was of opinion that he had no jurisdiction so to do by virtue of the limitation imposed by s.9. It seems to me that it is consistent with the whole tenor of the statute that technicalities should be avoided rather than that they should be proliferated. That is not to say that a claimant may, for example, file in the Labour Tribunal a claim for damages for libel and expect that the tribunal will transfer it to the proper forum. In any event the power of transfer is discretionary and I am not persuaded that there is anything "in the nature of the thing to be done, [anything] in the object for which it is to be done, [anything] in the conditions under which it is to be done, [anything] in the title of the persons for whose benefit the power is to be exercised" which "couples the power with a duty": Julius v. The Bishop of Oxford (1880) 5 A.C. 214, 222. However, I see no reason why a claim brought bona fide in the tribunal but which after enquiry the tribunal thinks it has no jurisdiction to hear and determine should not be transferred under s.10. Besides cases like the present, where questions arise under s.9, one can visualise cases which might prove to be founded upon a contract for services and not upon a contract of service: the tribunal would have to decline jurisdiction, but I am of opinion that those claims could be transferred so that the claimants would not be forced to institute new proceedings in the appropriate court. Nor do I think that s.9(3) is inconsistent with that opinion, although it does refer to the "institution" of proceedings in the Supreme Court or District Court: the purpose of that section is to leave no doubt that the expiry of the limitation period laid down in the earlier part of the section does not extinguish the claimant's rights under the contract of employment but merely bars him from obtaining a remedy in the tribunal. 4. Even if that be wrong I cannot accept the contention that, where the tribunal purports to exercise the power of transfer, the only court which can question its order is the District Court, acting under s.32. It is within the inherent jurisdiction of any judicial tribunal to make such enquiry as may be necessary to satisfy itself that it has jurisdiction. The suggestion that a judge of the Supreme Court faced with a claim transferred from the tribunal would be bound by a decision of the District Court that the order of transfer was valid only has to be stated for it to be seen to be insupportable. 5. Next it was argued that on the facts part of the present claim was outside the jurisdiction of the tribunal by virtue of s.9, that no order of severance was made under sub-s.(2) of that section and that, assuming the jurisdiction of this Court to enquire into the validity of the order of transfer, we ought to hold that the order was invalid. Again I think the argument fails because it is not a prerequisite of an order of transfer that the tribunal should have jurisdiction to hear and determine the whole of the claim transferred. All that matters is that the Supreme Court had jurisdiction to hear that claim. It follows that I do not find it necessary to consider whether or no the entire claim was within the jurisdiction of the tribunal. 6. The rest of the appeal relates to the manner in which the trial was conducted in the Supreme Court by the learned commissioner. The substance of the argument on behalf of the Appellants is once again that s.7(2) of the Labour Tribunal (General) Rules was ultra vires. The validity of that paragraph was discussed and decided in Hung Sang Engineering Works Ltd. v. Yu Wing Fat Civil Appeal No. 4 of 1974, judgment therein having been given after the decision in the present case. I say it was "decided", because there is no doubt that a view was expressed upon the matter by each of the members of the Court, but it has been suggested that those views were obiter. So far as my own judgment is concerned I think that suggestion is right, for I considered that the appeal would have had to be allowed whether or not r.7(2) was ultra vires. I hope that for that reason my rather summary (and possibly wrong) dismissal of Mr. Bokhary's able argument as to the validity of the rule may in part be excused. The other two judges made a different approach: they considered the alternative ground of appeal in detail and rejected it. I do not think their opinions can be swept aside as being obiter. Mr. Ching seeks to persuade us that on this point the previous appeal was wrongly decided and that we ought not to follow it. The argument has led us to an interesting discussion of the rule stare decisis, with which I must now deal. The application of the rule stare decisis, with which I must now deal. The application of the rule to the Full Court was considered as long ago as the beginning of this century, in In the matter of Sun Ah Wan (1910) 5 H.K.L.R. 72. In that case application had been made and granted for an order of habeas corpus following upon the committal of a person in extradition proceedings. Counsel for the applicant then asked for costs against the Crown and, the question being raised whether there was jurisdiction to award costs in habeas corpus proceedings, he submitted that the court was bound by a previous decision of the Full Court to hold that there was such jurisdiction. After full argument the Court declined to follow the previous decision. Two possible grounds of distinction between that and the present case must be noticed. First, it was an original application to the Full Court and not an appeal. I do not think that affects the binding force of the Court's decision. Secondly, the case, while not strictly a criminal case, nevertheless related to a criminal matter and was therefore a criminal proceeding. In my view that is a valid ground of distinction, for the courts have always adopted a more liberal approach in criminal proceedings, albeit on the basis that the liberty of a subject is usually at stake, which was not the position upon an application concerned only with the jurisdiction to award costs. In Cheng Pui Wah v. Luen Hup Chi Yip Ltd. 1964 H.K.L.R. 19 this Court expressly left open the question whether it was bound by its own decision in civil matters. It is emphasised on behalf of the Respondent that the Court of Appeal in England has generally considered itself bound by its own decisions in civil matters and, indeed, so decided by a majority in Gallie v. Lee 1969 2 Ch. 17. The Full Court is not, however, in precisely the same position as the Court of Appeal for, although an appeal lies from the Full Court to the Privy Council, the Full Court is the final appellate court within the Colony and appeals from Hong Kong to the Privy Council are even more rare than are appeals from the Court of Appeal to the House of Lords. In Reg. v. Tse Wan Yuen 1969 H.K.L.R. 261, 295 I expressed what I believed to be the proper considerations in relation to earlier decision in criminal matters and I am of opinion that what I then said is of equal application as decisions in civil matters. It is therefore necessary to see whether Hung Seng Engineering Works Ltd. v. Yu Wing Fat was, upon the issue as to the validity of r.7(2), manifestly wrongly decided. 7. I have no quarrel with Mr. Ching's submission that where a claim is transferred to the District Court or the Supreme Court it is transferred to that Court "in its usual jurisdiction". That, indeed, is implicit in what I have already said. However, I do not think it necessarily follows that that usual jurisdiction must be exercised in accordance with the usual procedure. It is said that the terms of O.1 r.2 of the Rules of the Supreme Court are inconsistent with r.7(2) of the Labour Tribunal (General) Rules and that is true. There is some attraction in the submission that by giving a limited interpretation to s.45(c) of the Labour Tribunal Ordinance we can avoid an apparent conflict between the rule-making authorities empowered by that Ordinance and by the Supreme Court Ordinance. On the other hand the Legislature itself included in the Labour Tribunal Ordinance provisions which on the face of them were in conflict with the Rules of the Supreme Court as they then existed. Thus s.20(1) provides:
The succeeding subsections refer to "the presiding officer", who is defined as being "a presiding officer appointed under s.4". Subsection (1) could easily have been drafted in the form "The presiding officer shall conduct the claim in an informal manner" and the distinction between the subsections could be taken to have been deliberate. At the same time it must be remembered that the interpretation section includes the words "unless the context otherwise requires". Where a claim is being heard in the Supreme Court the presiding officer is not "a presiding officer appointed under s.4" but a judge, and it could be argued that the context requires a different interpretation in subsections (2) and (3). Equally, of course, the word "tribunal" wherever it is found could be interpreted as meaning "the court" where a claim was being tried in the Supreme Court or District Court. If one adopts that liberal approach s.23(2) produces the result that counsel would be excluded from their right of audience in the Supreme Court. If the distinction in s.20 to which I have referred was indeed deliberate, then we have a number of provisions which are applicable regardless of where the claim is heard and determined and others which are applicable only where the claim is heard and determined by the tribunal. A similar distinction is to be found between sub-s.(4) of s.22 and the other subsections of that section. I confess that when this question came before the Court in the previous case I thought these distinctions were so clearly deliberate that the point now taken on behalf of the Appellants was without merit. I have now had doubts whether the language used by the Legislature was in truth sufficiently clear to show an intention to effect so radical a change in the manner of disposing of transferred claims: I fear that in my anxiety conscientiously to give effect to the intention of the Legislature, with which I was wholly out of sympathy, I construed that intention too widely. It is, perhaps, unfortunate that the wording of the Ordinance was such that it even left it to be implied that a claim transferred to the Supreme Court was to be heard and determined by the Supreme Court: even less did it provide how a hearing in the Supreme Court was to be conducted. That, of course, was not necessary if it was sufficiently clear that a transferred claim was to be deemed to be an action begun by writ in the Supreme Court. That such was the intention is supported by the long title to the Ordinance, which reads:
Can it fairly be said that the practice and procedure of the Supreme Court and District Court are matters "connected with" the establishment of the Labour Tribunal? If so, the connection is rather remote. Moreover, if I am right in holding that under s.10 a tribunal may transfer a claim to the Supreme Court by reason of the tribunal's having no jurisdiction to hear and determine it, it would be a remarkable thing if the claim still had to be tried in the informal manner undoubtedly prescribed for hearingsin the tribunal. 8. I should perhaps mention an argument which was based upon s.38(1)(e) of the Supreme Court Ordinance and which, if I understood it aright, was that since the Supreme Court Rules Committee has power under para. (a) to prescribe the practice to be followed "in all causes and matters whatsoever in or with respect to which [the Supreme Court (including the Full Court)] has for the time being jurisdiction" then the Committee has power to prescribe the procedure for hearing claim to the Court from the Labour Tribunal and that it further has power under para. (e) to provide for the repealing of any rules made by the Chief Justice under the Labour Tribunal Ordinance. In my view para. (e) was intended to refer only to enactments existing when it came into force: the Rules Committee could not nullify a provision by which the Legislature itself subsequently prescribed the procedure in a particular class of case and I think that the later provision would have to be taken as impliedly amending s.38 of the Supreme Court Ordinance. If the Legislature can itself impliedly amend the section in that way it can equally empower the Chief Justice to do so. All that is required is that the intention shall be clear. In para. (a) the intention is clear that the Chief Justice may make rules regulating the hearing of appeals to the District Court against awards, although the District Court Rules Committee would, but for that paragraph, have a like power under s.72 of the District Court Ordinance. If it were equally clear that the Legislature intended the Chief Justice to be able to make rules regulating the hearing of claims in the Supreme Court I would not be deterred (as I was not deterred in the earlier case) from giving effect to that intention, even though the result would be to limit the powers of the Supreme Court Rules Committee. However, I do not now think that such an intention is clear. 9. The conclusion to which I find myself now driven is that Part V of the Labour Tribunal Ordinance, relating to practice and procedure, was not intended to apply otherwise than to hearings in the tribunal itself, despite the distinctions to which I have referred. I think that s.45 ought then to receive a similarly narrow interpretation and that para.(c) ought to be read as enabling the Chief Justice to make rules only for matters of procedure in the tribunal, matters of procedure subsequent to a transfer being governed by the Rules of the Supreme Court in so far as they are applicable. That does not mean that a writ is required in a case which is transferred, because I think we were right to hold in the previous case that the writ is required only for the purpose of instituting proceedings originating in the Supreme Court. With respect to the learned judge in the court below I do not think para.(b) of s.45 could in any circumstances have justified r.7(2) of the Labour Tribunal (General) Rules, because it was concerned with the machinery of transfer and not with the conduct of the Claim after transfer. The view which I have expressed also takes the matter outside para.(g). The result is that I think r.7(2) was ultra vires, but that puts me in this difficulty: although I am persuaded that my earlier view was wrong and although Pickering, J. is of the same opinion, my Lord the Chief Justice, who was party to the previous decision, is still of opinion that r.7(2) was intra vires. If this Court does not follow the decision of the majority in Hung Sang Engineering Works Ltd. v. Yu Wing Fat it declines to do so only by a majority. I am very mindful of my own observations in Reg. v. Tse Wan Yuen 1969 H.K.L.R. 261, 295 (a criminal case), but we are here concerned with the ascertainment of the scope of a cower to legislate and it seems to me that where a court decides, even by a majority, that such a power has been exceeded it would be wrong to say that it should follow a previous decision which held the contrary. There may well be a distinction between a case where, as here, the first decision was that the power had been lawfully exercised and a case where the first decision was that the power had been unlawfully exercised, because in the former case the second court, if it declined to follow the earlier decision, would have to close its eyes to possible further abuses of power. If the court misconstrues the intention of the Legislature that can always be remedied by amending legislation and, indeed, it is to be hoped that this particular Ordinance will receive further legislative consideration. In the mean time more damage is likely to result from an erroneous exercise of power than by an erroneous limitation of power. The first decision was reached only very recently and will have been acted upon in only a small number of cases. For these reasons I am disposed not to follow that decision in the present case. 10. In my judgment, therefore, the appeal succeeds and we ought to direct that the claim should be conducted in the Supreme Court in accordance with the Rules of the Supreme Court. 28th August 1974. Representation: IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO.16 OF 1974 (On appeal from Labour Tribunal Claim No.879/73) -----------------
----------------- Coram: Briggs, C.J., Huggins & Pickering, JJ. Date of Judgment: 28th August 1974. ----------------- JUDGMENT ----------------- Pickering, J.: The situation highlighted by this appeal is one in which Rules of the Supreme Court, validly made by the Supreme Court Rules Committee, have been derogated from by virtue of another Rule made by a former Chief Justice acting alone, under powers thought to be contained in the Labour Tribunal Ordinance (Cap. 25). 2. Balancing my initial instinct in the matter against the realisation that three of my brethren, in Full Court, have expressed the view that the derogating Rule is intra vires, I have approached the question of its validity or otherwise, with all the circumspection which I would exercise in seeking to traverse a minefield that is to say, with mental antennae fully extended but not without some jealousy for the domain of the Supreme Court Rules Committee. I am acutely conscious of the circumstance that I am the only member of this Court who was not a member of the previous Court, so that I approach the task of setting down my views, the more so in view of the conclusion of which I have arrived, with suitable diffidence and with all the circumspection to which I have referred. 3. The Rules of the Supreme Court are the heritage both of those of our community who choose to have recourse to that Court and of those who, being sued whether with or without good cause, are willy-nilly involved in its processes. They are derived from their English counterparts and, though constantly evolving, are the result of generations of experience aimed at the effective dispatch of the business of the Court consonant with the maintenance of a just balance between the parties and the discouragement of abuses of the processes of the Court. The making of such Rules is rightly so jealously circumscribed that not even the Chief Justice, acting in conjunction with the whole Bench of Supreme Court Judges, may add or subtract a comma from them. For s.38(6)(a) of the Supreme Court Ordinance (Cap. 4) provides that:-
4. Hence the making, by the former Chief Justice alone, under a power conferred by s.45 of the Labour Tribunal Ordinance (Cap. 25), of a Rule the effect of which is to add to the class of exceptions to the general rule (O.1 r.2) that the Rules of the Supreme Court shall have effect in all proceedings in the Court, invites subjection to minute scrutiny. 5. The matter originated in the Labour Tribunal where the respondent claimed against the appellant company a sum in excess of $98,000 in respect of salary and commission. The presiding officer, considering the claim unsuitable for determination in the Labour Tribunal, declined jurisdiction and transferred the claim to the Supreme Court in exercise of his powers under s.10 of the Labour Tribunal Ordinance. In the Supreme Court, the matter came before Mr. Commissioner Baber (as he then was) before whom it was argued that once a claim had been transferred to the Supreme Court the claimant must bring the defendant before that Court by the method appropriate to the Court, namely by the issue of a writ and that the process of transfer could not alter the procedure of the Court to which the matter was transferred. The learned commissioner was not persuaded by the argument and ruled that the claim should be heard in accordance with the informal procedure laid down for hearings in the Labour Tribunal subject to certain modifications such as that counsel could appear for either side in the Supreme Court, whereas they would not have been able to appear before the Labour Tribunal. The learned commissioner, however, ruled that in general the procedures of the tribunal should be observed in this Court and, specifically, that no writ should be issued under Rules of the Supreme Court nor any pleadings delivered. 6. The present appeal is against that decision and seeks an order that the proceedings must be conducted in accordance with the Rules of the Supreme Court on the grounds that the learned commissioner was wrong in law in failing to find that r.7(2) of the Labour Tribunal (General) Rules was ultra vires and holding it intra vires by reason of s.45(g) of the Labour Tribunal Ordinance; it is further alleged that the learned commissioner was wrong in law in failing to hold that the Rules of the Supreme Court, and in particular O.1 r.2, applied to these proceedings upon their transfer to the Supreme Court. 7. It will assist a precise appreciation of the problem if I set out the relevant legislation. 8. The rule-making authority for the Rules of the Supreme Court is defined by s.38(6)(a) of the Supreme Court Ordinance (Cap. 4) which has already been set out. Rules of Court have of course been made and O.1 r.2(1) reads:
9. The following sub-rules contain certain exceptions to that general rule. 10. It will be recalled that the procedure of the Labour Tribunal is informal. Moreover the Labour Tribunal Ordinance empowers the Chief Justice to make rules for the purpose of the Ordinance. That power is contained in s.45 which reads:
11. In pursuance of that power certain rules including the Labour Tribunal (General) Rules have been enacted. Rule 7 of the (General) Rules after providing that where a tribunal transfers a claim to the Supreme Court or the District Court, the registrar of the tribunal shall send to the registrar of the appropriate court a certified copy of the entries in the register and all documents in his custody relating to the claim, continues:
12. It will be at once apparent that whereas by statute the Supreme Court Rules Committee is established as the progenitor of all Rules of the Supreme Court and has, at the very outset of these rules legitimately fathered by it, provided that subject to certain exceptions specifically set out, the rules shall have effect "in relation to all proceedings in the court", the effect of r.7(2) of the Labour Tribunal (General) Rules - in which the reference to "the Ordinance" can only envisage the Labour Tribunal Ordinance - has been to permit a Chief Justice, without the assent or concurrence of the Rules Committee to add to the closely circumscribed list of exceptions permitted by the Rules Committee. It is the validity of that step which is under scrutiny. 13. That the two provisions are contradictory, is apparent. The one, the Rules of the Supreme Court, lays down a general rule and thereafter provides a list of exceptions to that rule, which list was clearly intended by the Rules Committee to be exhaustive. The other, the Labour Tribunal (General) Rules adds to that "exhaustive" category of exceptions thus partly repealing O.1 r.2. Both rules are of course in the nature of delegated legislation and both are made under valid, though different, statutory powers. 14. There is however worse to come. For the rule under discussion is not merely at variance with delegated legislation in the form of O.1 r.2 of the Rules of the Supreme Court, but contradicts statute itself in the form of s.38(1)(a) and 38(6)(a) of the Supreme Court Ordinance. Section 38(1)(a) reads:-
15. I emphasise the words "all causes and matters whatsoever". 16. Section 38(6)(a) has already been set out in this judgment. It provides for, and lays down the constitution of the Rules Committee. 17. Thus s.38(1)(a) makes provision for rules of Court governing all causes and matters whatsoever before the Court whilst s.38(6)(a) lays down what body shall make those rules. Yet r.7(2) of the Labour Tribunal (General) Rules, is not only made by somebody other than the Rules Committee but also provides that the Rules of the Supreme Court shall not apply to one particular type of cause or matter before it. Such a provision, so enacted, cannot in my view be valid. If ever the Legislature wishes to deprive the Rules Committee of its powers in a specific direction, it will have to do so, and no doubt will do so, in the clearest and most unambiguous terms. 18. A device sometimes employed in order to avoid repugnancy is to regard two apparently conflicting provisions as dealing with two distinct matters or situations. That, however, is not a practical solution to the present problem for it would strain both language and commonsense to assert that one rule or the other does not deal with "proceedings in the court". 19. Again, on the general principle that the Legislature is deemed not to have contradicted itself, the courts lean against construing the language of the Legislature on the basis of "leges posteriores priores contrarias abrogant". Certainly in the present instance that maxim would appear inappropriate if only because the two rule-making bodies are so differently constituted. There can be no doubt that the more powerful of the two in relation to proceedings in the Court is the Rules Committee to which is entrusted the task of making rules regulating the business of the Court. That Committee is representative of the whole of the legal profession in the Colony and, as we have seen, not even the whole Bench of judges, headed by the Chief Justice, can make new rules of court or alter those in existence. In the light of that fact I find it impossible to accept that it was ever the intention of the Legislature to empower the Chief Justice, in relation to one class of case of no more importance than any other class and different only in that the cases in this class were first brought before another tribunal and subsequently transferred to the Court, to depart, on his own initiative, from the general rule laid down by the Rules Committee. In my view that part of r.7(2) of the Labour Tribunal (General) Rules which says that "all subsequent proceedings in respect of the claim shall be taken in that Court in accordance with the provisions of the Ordinance", is ultra vires. Those portions of s.45 of the Labour Tribunal Ordinance which are relied upon for the contrary view, cannot, in my opinion, in the light of the foregoing, support that view. Thus, the section provides that the Chief Justice may make rules -
20. That subsection does not refer to regulating the "hearing" of proceedings in the District Court or Supreme Court. It relates to nothing more than the process of transfer and cannot be called in aid to regulate proceedings after transfer. Similarly
must not be read as referring to procedures in courts other than the one with which the Ordinance is concerned, namely the tribunal. Certainly it does not confer power to over-ride the Supreme Court Rules Committee. Whilst
similarly cannot envisage "the better carrying out of the provisions of the Ordinance" within the Supreme Court in defiance of the Supreme Court Rules Committee. 21. If support be needed for the view that the words to which I have referred in r.7(2) are ultra vires, it is to be found in the very nature of the present claim which is both for a large amount, of a complicated nature and strongly contested. It is a case which cries aloud for pleadings. It is precisely reasons such as this which in most cases must underlie the decision by a presiding officer of the Labour Tribunal to decline jurisdiction and transfer the case to the Supreme Court or the District Court. 22. Having referred to the desirability of pleadings in this case, let me say at once that the issue of a writ is not required. The function of a writ is to get the matter before the Court and that process has been achieved by the transfer from the Labour Tribunal. The provision in O.5 r.1 that civil proceedings in the Court may be begun by writ, originating summons, originating motion or petition, is qualified by the words "subject to the provisions of any written law". It is under the provisions of such a law, namely s.10 of the Labour Tribunal Ordinance, that this case has been transferred to this Court and a writ would be a superfluity. 23. Having reached the conclusion that the relevant portion of r.7(2) of the Labour Tribunal (General) Rules is ultra vires, I must now face the fact that three judges of this Court, in Civil Appeal No. 4 of 1974, expressed the view that it was intra vires. I did not have the advantage of hearing the arguments in that case but a perusal of two of the judgments therein might suggest that the crux of the argument for the appellant on this point, was simply that a writ should have been issued. However, the actual ground of appeal was more widely expressed, in these terms:-
24. Yet two of the judgments suggest strongly that what was actually argued was simply that a writ should have been issued. Thus the learned Chief Justice said in his judgment:
25. My brother Huggins, J. expressed himself in these terms:
26. In other words two of the judgments in that case decided, as has been reiterated in this case, that the issue of a writ was unnecessary. If that was in fact the basis of counsel's argument, that was all that it was necessary to decide, and any expression of opinion upon the validity or otherwise of that portion of r.7(2) under discussion, was by way of obiter dicta so far at any rate as two members of that Court were concerned. For whether intra vires or ultra vires no writ was necessary. 27. However, McMullin, J., who was the third member of the Court in Civil Appeal No. 4 of 1974 expressed himself at greater length and over a wider field:
28. From this it would appear that the argument of counsel for the appellant may have been less restrictive than that suggested by the extracts which I have quoted from the first two judgments in that case. If I am right in considering that the dicta of two of the judges in that case were obiter I would have no hesitation in departing, in this case, from the conclusion as to the validity of r.7(2) arrived at in that case. But if those findings were not obiter and if the conclusion which I have reached does indeed fly in the face of findings which were strictly necessary to the determination of Civil Appeal No. 4 of 1974, then the application or non-application of the principle of stare decisis in civil matters in this Court, looms large. 29. It is a matter for surprise that by the year 1974 there is no authoritative ruling as to whether this Court, in its civil jurisdiction, is bound by its own previous decisions. Allusion has on several occasions been made to the topic, which has then been handled very delicately, examined briefly and replaced on the shelf. See, for example, Chan Wing On (No. 2) v. D.P.W.(1), Cheng Pui Wah v. Luen Hup Chi Yip Ltd.(2) and Joseph Yen & Co. v. Luen Cheong Hong(3). In so expressing myself I would not wish it to be thought that I am critical of the cautious treatment accorded to so important a topic for there is as much wisdom, where a matter of such moment is concerned, in a reluctance to conclude the issue until a case arises in which it is absolutely necessary so to do. 30. Is this such a case? I think it is and that in this year of grace I must face the issue squarely and cannot replace it on the shelf. Tempting as it is to take the view that by his statement of the first ground of appeal in Civil Appeal No.4 of 1974, the learned Chief Justice was confining himself to deciding merely that the issue of a writ was unnecessary, the ruling actually given, following that statement of the ground of appeal, in fact went further. That ruling was as follows:
31. Here the learned Chief Justice was stating that the procedure in the court of transfer was, in accordance with the direction in r.7(2), to be the informal procedure of the Labour Tribunal. As we have seen, the judgment of my brother McMullin, J. arrived at a similar result and it was in fact only the judgment of Huggins, J. which stopped short after holding that the issue of a writ was unnecessary. It becomes clear therefore that in considering how far the ruling of each judge to the effect that r.7(2) was intra vires, was merely obiter, only that of my brother Huggins, J. can be said to have been obiter. The two other judges specifically expressed the view that the informal character of the procedure before the Labour Tribunal was to be imported into the proceedings before the court of transfer. The question remains as to how far that finding was necessary to the decision in the case, because if it were unnecessary the finding could, in each case, still be said to be obiter. But that it was in fact necessary to the decision in the case becomes apparent upon a mere re-reading of that ground of appeal which I have previously set out. 32. The position therefore is that in Civil Appeal No. 4 of 1974 two judges have held r.7(2) to be intra vires, in circumstances in which a finding upon the question of intra vires or ultra vires was necessary to their determination of the case. Being of the opinion that the finding in each case was incorrect and that the rule is in fact ultra vires, and it being the case that I cannot characterise two of the judgments in that former appeal as obiter upon this point, I am faced squarely with the issue of stare decisis. I cannot replace it on the shelf. 33. What then, is to be the approach of this Court to the question as to whether or not it is bound by its own previous civil decisions? Certainty in the law is very highly desirable. Yet, where a previous decision of the Court is seen to be manifestly incorrect, more mischief may well be done by adhering to that decision through thick and thin and perpetuating falsity, than by a recognition of that falsity. This is not to suggest that previous decisions of the Court should be lightly abandoned; any departure from such decisions should be embarked upon only where a later Court is convinced of error in the earlier decision. 34. Is this then, a case in which such error is sufficiently manifest that this Court should decline to follow the findings in Civil Appeal No. 4 of 1974 that r.7(2) of the Labour Tribunal (General) Rules is intra vires? For the reasons which I have already given, I think it is and those reason are reinforced by the practical implications of following the earlier finding by the present case. Civil Appeal No. 4 of 1974 was concerned with transfer to the District Court; the amount involved was some $6,000 and argument in the appellate court was not directed towards transfer to the Supreme Court. In particular, the impingement of r.7(2) upon the jealously-guarded functions of the Supreme Court Rules Committee was, understandably, not present to the mind of the Court. In the present case that issue is spotlighted. Moreover it is to be observed that the amount involved is approximately $100,000 and the issues are both complex and strongly disputed. Whilst there is merit in conducting the numerous day to-day, run-of-the-mill, labour disputes in an atmosphere of informality and without the assistance of pleadings or the presence of counsel, that same degree of informality is ill-adapted to, and unlikely to assist in, the determination within the Supreme Court of disputes bearing the characteristics of that under review. This purely practical consideration appears to me to reinforce the conclusion which I have previously expressed upon interpretive grounds and to underline the unlikelihood of the Legislature having intended to interfere with the jurisdiction of the Supreme Court Rules Committee by permitting a class of case, indistinguishable from most others, to be litigated in the Court except in accordance with the Rules of Court. 35. In this connection the learned commissioner appears to have envisaged that at the hearing in the Supreme Court some modification of the procedures laid down for the Labour Tribunal might need to be made and indicated that in his opinion counsel could appear for either side in the Supreme Court. The reason for this was that the learned commissioner considered that the right to be represented by counsel in the Supreme Court was not to be varied without strongly expressive words which he did not find in the Labour Tribunal Ordinance. I should have thought with respect, that the last place in which such a permissive exemption would be likely to be found was the Labour Tribunal Ordinance. But that exemption is nonetheless purported to be conferred by the (General) Rules made under that Ordinance; specifically by r.7(2) which provides for proceedings in the court of transfer to be conducted in accordance with the provisions of the Labour Tribunal Ordinance, which provisions exclude counsel or solicitors. I am at a loss to understand the hybrid procedure suggested by the learned commissioner for if r.7(2) is intra vires, the procedure before the Supreme Court is to be the informal procedure laid down for the Labour Tribunal and excludes counsel. If the rule is ultra vires, the procedure to be adopted should be that laid down by the Supreme Court Rules Committee which permits appearance by counsel. It seems that in suggesting this hybrid procedure, the learned commissioner was aware of the difficulties likely to be encountered in the Supreme Court in a claim of this nature if counsel were not permitted audience, but no interpretive justification for the hybrid procedure suggested, was advanced. However, the very recognition, by the Commissioner, of the difficulties which the Court and the parties might encounter without the assistance of counsel, in a case of this nature, underline the unlikelihood of it ever having been the intention of the Legislature that procedures in the Supreme Court should, in the case of transferred cases, follow those of the Labour Tribunal. 36. I would decline to be bound by the decision as to the validity of r.7(2) of the Labour Tribunal (General) Rules, contained in Civil Appeal No. 4 of 1974. 37. If the view I have taken as to the invalidity of the Rule be correct, it must follow that the transfer of the claim from the Labour Tribunal to the Supreme Court, is a transfer to that Court qua the Supreme Court. Once that is said, there can be no doubt that an appeal from the learned commissioner's decision to this Court, does lie and Mr. Donnelly's preliminary objection to the jurisdiction of this Court to hear any appeal, must fail. Similarly once it is accepted that a judge or commissioner of the Supreme Court dealing with a transferred claim is dealing with it in that capacity, and not as the alter ego of the Labour Tribunal, we are spared the ludicrous situation of an appeal from him lying not to this Court but, as argued for the respondents to District Court judge in accordance with s.32 of the Labour Tribunal Ordinance. 38. A final ground of appeal was that the cause of action in respect of part of the claim, arose more than six months before the date when the respondent filed his claim, and that since no consent has been given by the appellants to the severance of such part of the claim, the Labour Tribunal had, in accordance with s.9(1) of its governing Ordinance, no jurisdiction to hear the claim. If, the argument ran, there was no jurisdiction to entertain the claim, there was no jurisdiction to transfer it. 39. It is first to be noticed, in connection with this ground of appeal, that the suggestion that the cause of action in respect of part of the claim arose more than six months before the date of the filing of the claim, is disputed and the issue is one of fact, upon which at this stage, we have insufficient material to come to any conclusion. That fact however, as it seems to me, is irrelevant for I agree with my brother Huggins that there is nothing in the Ordinance to suggest that it is a prerequisite of an order for transfer that the tribunal should have jurisdiction to hear and determine the whole of the case transferred. This ground of appeal must fail. 40. In the result I would allow the appeal holding that whilst the issue of a writ is unnecessary, the remainder of the proceedings before this Court should continue in accordance with its Rules. Unless within 14 days, the respondent makes application to be heard as to costs, the appellants will be entitled to costs here and below. Representation: C. Ching, Q.C., Bokhary (Wilkinson & Grist) for appellant. Donnelly (Hastings & Co.) for respondent. (1) (1965) H.K.L.R. 192 @ 203 (2) (1964) H.K.L.R. 19 @ 36 & 46 (3) (1952) H.K.L.R. 215 @ 221. |
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