ANTONIA LOUISE ZOYA ANTON v. CATHAY PACIFIC AIRWAYS LTD

DCEC 724/2020

[2022] HKDC 424

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO. 724 OF 2020

--------------------------

--------------------------

--------------------------

DECISION

--------------------------

THE APPLICATION

1.  By summons filed on 24 November 2021 (“the Replacement Summons”), the respondent applied for leave to withdraw the Affidavit of Albert Ki-Yan Yeung (“Mr Yeung”) filed on 3 September 2021 and replace it with the 1^st Affidavit of Kwong, Tannie Tsz Pang (“Mr Kwong”) filed on 24 November 2021.

BACKGROUND

2.  The background of this application is quite unusual.

3.  This is an employee’s compensation case, in which the applicant, a pilot/First Officer employed by the respondent, claims that during the course of a flight which departed Hong Kong for Incheon, Korea on 20 May 2018 at 1am, she had inhaled a “strong chemical smell” similar to engine oil fumes which had caused various injuries including but not limited to her nose and chest, and that she was subsequently diagnosed to be suffering from Reactive Airway Dysfunction Syndrome.

4.  On 3 September 2021, the respondent took out a summons for specific discovery against the applicant (“the Discovery Summons”), and filed an Affidavit of Mr Yeung in support. Mr Yeung is an associate of Messrs. Kennedys, solicitors for the respondent (“Kennedys”).

5.  On 10 November 2021, the applicant’s solicitors (“Munros”) wrote to Kennedys, and in the letter the respondent was demanded to withdraw Mr Yeung’s Affidavit, on the grounds that:

(1)  Mr Yeung, as the respondent’s solicitor, should not have made an affidavit in support for the respondent;

(2)  Mr Yeung had expressed medical opinion regarding the applicant’s psychological condition but he did not have medical background;

(3)  Mr Yeung did not make reference to two medical reports in his Affidavit.

6.  What Munros did not point out in the said letter was that Mr Yeung’s “Affidavit” was actually unsworn.

7.  The call-over hearing of the Discovery Summons was fixed to be heard on 26 November 2021. In Munros’ skeleton argument dated 19 November 2021 lodged for this call-over hearing, it was submitted that the Discovery Summons should be dismissed forthwith, or alternatively, Mr Yeung’s purported Affidavit should be held inadmissible because:

(1)  The Discovery Summons was not supported by a sworn affidavit;

(2)  Mr Yeung was not an appropriate deponent;

(3)  Mr Yeung did not explain why an employee of the respondent, including in particular Mr Russell David Lamb[1], Associate General Counsel of the respondent, was not considered appropriate to make an affidavit in support of the Discovery Summons.

8.  In the light of Munros’ objections, the respondent made the present application by way of the Replacement Summons.

DISCUSSIONS

Withdrawal of affidavit

9.  The application to withdraw Mr Yeung’s “Affidavit” can be dealt with quickly. Leaving aside for the time being the appropriateness for Mr Yeung to make an affidavit for and on behalf of his lay client in support of the Discovery Summons, the undisputed fact is that the “Affidavit” filed was actually not sworn by Mr Yeung. Hence, the filed document is not a valid affidavit as such.

10.  I therefore order that Mr Yeung’s purported Affidavit filed on 3 September 2021 shall be expunged from the court file.

Filing of Mr Kwong’s Affidavit

11.  The main purpose of the Replacement Summons is to seek leave to file Mr Kwong’s 1^st Affidavit in support of the Discovery Summons.

12.  The applicant objected against the respondent’s reliance of Mr Kwong’s 1^st Affidavit. Munros relied on the following part of the applicant’s Affidavit which they said had summarise[d] her reasons for opposing the admissibility of Mr Kwong’s Affidavit:

“4. My reasons for opposing the admissibility of 1^st Kwong, as stated, being that:

(a) Mr Kwong is an employed inhouse lawyer of the Respondent: he is not appropriate and lacks the requisite knowledge of the issues involved to make affidavit on behalf of the Respondent, on the basis of information and belief as asserted held by him, in support of the Respondent’s summons of 03.09.2021 when there are other employees of the Respondent who are known to be employed and are more appropriate;

(b) Mr Kwong seeks to rely on the partial contents of medical reports/records as redacted by the Respondent without provision of their full contents;

(c) fails to refer to the Court and address the stated contents of medical reports possessed by the Respondent, including a report prepared by Dr Henry Chan as employed by the Respondent in the capacity of Principal Medical Officer and which reports contradict the various assertions as made by Mr Kwong on the basis of information and belief;

(d) omits references to relevant facts, as known to the Respondent as admitted to by its employees in the documentation of the Respondent concerning the occurrence of the Accident as suffered by me on 19.05.2018, the subject of these proceedings.”

13.  With greatest respect, these grounds must be rejected.

14.  Firstly, the applicant’s continued reliance on the proposition that “solicitors should not swear affidavits as to factual matters on behalf of the parties”[2] and her argument that Mr Kwong is not an appropriate deponent are not understood:

(1)  As mentioned above, it was Munros’ argument that Mr Yeung did not explain why Mr Russell David Lamb, Associate General Counsel of the respondent, did not make an affidavit in support of the Discovery Summons instead. It therefore seems that the applicant considered that Mr Lamb would be an appropriate deponent. According to Mr Kwong’s 3^rd Affidavit, he is the respondent’s Senior Legal Counsel working under Mr Lamb and is responsible for managing all matters arising from these proceedings on behalf of the respondent. If Mr Lamb is a suitable deponent, there is no reason why Mr Kwong is not;

(2)  The position of an in-house counsel employed by a party to the proceedings is apparently different from a practising solicitor, working for a solicitors’ firm, who acts for a party. The rationale explained in cases such as Leung Kin Fook & Others v Eastern Worldwide Co Ltd [1991] 1 HKC 55 is inapplicable to in-house counsel.

15.  Secondly, in relation to the complaint about redacted copies of medical reports/records, I only have to quote paragraph 9 of the applicant’s 2^nd Affidavit as follows:

“In 1^st Kwong Mr Kwong fails to verify that the various documents exhibited to his affidavit are true and complete copies. Within various pages to exhibit TK-1, including copies of medical reports and records as disclosed by me to the Respondent in these proceedings, there are made substantial redactions. […]”

16.  The redacted documents are the applicant’s documents. If the applicant considers it necessary and if she thinks the redacted parts are relevant, there is nothing which prevents her from exhibiting the non-redacted version of those documents at all in her Affidavit in opposition to be filed.

17.  Thirdly, by the same token, if the applicant considers that Mr Kwong had omitted to refer to any relevant facts or documents, it is up to her to state those facts and refer to those documents in her Affidavit to be filed in opposition.

18.  Munros had put forward other arguments in their written submissions.

19.  They submitted that, by making the replacement application, the respondent is trying to make it impossible for the applicant to seek leave to cross-examine Mr Yeung and/or Mr Kwong as to the contents of their respective affidavits. This argument has no merits:

(1)  It is the applicant’s own argument that Mr Yeung’s evidence is inadmissible. I wonder what purpose the applicant could achieve in cross-examining Mr Yeung;

(2)  If Mr Kwong’s 1^st Affidavit is admitted as evidence, it is up to the applicant to seek leave for cross-examining him. Putting aside the question of whether the court would grant leave for cross-examination at this stage of the proceedings for the purpose of a specific discovery application (as to which I do not express any view herein), I do not understand how it can be said that the present application has made it impossible for the applicant to do so.

20.  Munros also suggested that the respondent’s attempt to replace Mr Yeung’s Affidavit was made out of time[3]. Although the Replacement Summons was indeed filed more than 2½ months after the filing of the Discovery Summons, the fact is that the call-over hearing of the Discovery Summons was only held on 26 November 2021, at which the respondent’s specific discovery application was adjourned sine die with liberty to restore. The intention of this court at that time was to wait until the result of this replacement of affidavit application is known before giving further directions on the disposal of the said specific discovery application – a course which was accepted by both parties. I cannot see how the applicant could be prejudiced in such circumstances even if retrospective leave is now granted for Mr Kwong’s 1^st Affidavit to be filed.

ORDER

21.  I therefore grant retrospective leave for the respondent to file and serve Mr Kwong’s 1^st Affidavit on 24 November 2021 in support of the Discovery Summons.

22.  To ensure that the case shall progress as quickly as possible, I also direct that:

(1)  The parties shall use their best endeavours to agree on the further directions to be sought for the disposal of the Discovery Summons;

(2)  In the event agreement can be reached on such directions, they shall file a consent summons no later than 20 May 2022;

(3)  If no agreement can be reached, they shall write to the court separately no later than 27 May 2022, and set out the directions required with reasons in support;

(4)  The court will then give further directions on paper.

COSTS

23.  The whole application stemmed from the respondent having put forward Mr Yeung as a deponent, who did not even sign his Affidavit.

24.  On the other hand, with greatest respect, the applicant was trying to seek the dismissal of the Discovery Summons by a knock-out blow. However, the arguments advanced were totally unmeritorious. If the matter had been handled in a more reasonable way, the Discovery Summons would not have been stalled for half a year.

25.  Having taken the above matters into account, I make a costs order nisi that there be no order as to the costs of the application.

26.  If any party wishes to vary the costs order nisi:

(1)  Such a party shall lodge and serve written submissions within 14 days hereof;

(2)  The other party shall lodge and serve written submissions within 14 days thereafter;

(3)  The applying party shall lodge and serve written submissions in reply within 7 days thereafter;

(4)  The application shall then be disposed of on papers.

27.  The above order nisi shall become absolute in the absence of application to vary within the first 14-day period mentioned above.