SIT KA YIN PRISCILLA v. EQUAL OPPORTUNITIES COMMISSION AND OTHERS

HCMP 1117/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1117 OF 2011

(ON AN INTENDED APPEAL FROM DCEO NO. 11 OF 1999)

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BETWEEN

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DECISION

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Hon Tang VP:

Introduction

1.  The 1^st Defendant (Equal Opportunities Commission) ("EOC") was established as an independent statutory body in 1996 to implement, inter alia, the Sex Discrimination Ordinance ("SDO") and the Disability Discrimination Ordinance ("DDO") which came into full operation in December 1996.

2.  The 2^nd Defendant was its chairperson from 20 May 1996 to 31 July 1999.

3.  The 3^rd Defendant was its Chief Executive from 1 October 1996 to 29 September 1999.

4.  The Plaintiff was employed as a director of the Gender Division ("Director (Gender)") under a contract evidenced by an offer letter dated 1 August 1996 and a letter of acceptance dated 5 August 1996.  Before the Plaintiff joined the EOC, she had worked in the Police Force to the rank of Chief Inspector.  She then qualified as a solicitor and worked in the Attorney General's Chambers as Assistant Crown Counsel and later Senior Crown Counsel. She resigned in 1992 and then joined the Law Society of Hong Kong as Assistant Director (Complaints).

5.  As was explained by the 3^rd Defendant in her witness statement of 4 April 2003:

"5.  At the material time, the two operations Divisions (the Disability Division and the Gender Division) each comprised two Chief Equal Opportunities Officers ('CEOOs'), six Senior Equal Opportunities Officers ('SEOOs') and two Equal Opportunities Officers ('EOOs').  Each CEOO supervised three SEOOs and an EOO. The CEOOs reported directly to the Director of their Division.  The Plaintiff was the Director of the Gender Division and reported to me."

6.  The Plaintiff's employment with the EOC commenced on 9 September 1996 and she completed 6 months' probation on 8 March 1997.  Her employment was terminated on or about 25 September 1997.

7.  The present action was commenced on 24 September 1999, although not served until September 2000.  In this action, the Plaintiff claimed against the Defendants for, inter alia, damages for disability discrimination, sex discrimination and victimization under the SDO.  The action was inactive between September 2003 and September 2006.  However, the Plaintiff made three complaints against EOC under the Personal Data (Privacy) Ordinance (Cap. 486) to the Privacy Commissioner Office as well as three appeals to the Administrative Appeals Board against the decisions of Privacy Commissioner Office.  The appeals were dismissed by the Board.  In the meantime the Defendants had issued two Notices of Intention to Proceed on 17 February 2003 and 30 August 2006 respectively.

8.  On 28 September 2006, the Plaintiff filed a Notice to Act in Person. There followed a number of interlocutory applications before the court in 2007 and 2008, which resulted in adverse costs orders against her.  See para. 14 below.

9.  On 16 April 2008, the trial was fixed to commence on 3 November 2008 with 15 days reserved.  She failed to attend the trial on 3 November 2008, as a result District Judge Lok dismissed her claim.  

10.  By summons dated 28 November 2008, she applied to set aside the judgment of 3 November 2008.  There was a hearing on 16 March 2009 where the Plaintiff was represented by Mr Philip Dykes SC and Mr Kenneth Lee.  On 16 March 2009, Judge Lok set aside the judgment and handed down his reasons for decision on 2 April 2009. 

11.  As a condition to setting aside the judgment, Judge Lok ordered that the Plaintiff pay into court the sum of $450,000 as security for "a number of costs orders made against the Plaintiff before the trial date in November 2008".  Para. 39 of the decision of 2 April 2009.  He also ordered the Plaintiff to pay the costs of "the trial in November 2008" as well as the costs of the application to set aside the judgment of 3 November 2008.  The above costs orders are the subject of an application by the Plaintiff for leave to appeal out of time.  I will deal with this application later in the judgment.

The Trial

12.  The trial eventually took place on 9 November 2009 ("the Trial"), and took 9 days.  The judgment was handed down on 11 February 2010 ("the Judgment"), where her claims against the Defendants were dismissed.

13.  There was a hearing on costs on 27 August 2010.  The Plaintiff was represented by Mr Philip Dykes SC and Mr Andrew Mok.  The decision on costs ("the Decision") was handed down on 27 October 2010 and she was ordered to pay the costs of the proceedings to the Defendants under sections 73B(3) (which covers proceedings under the SDO) and 73C(3) (for proceedings under the DDO) of the District Court Ordinance (Cap. 336) ("DCO").

This Court

14.  By summons dated 14 June 2011, the Plaintiff asked for leave to appeal out of time against the Judgment, the Decision, as well as certain costs decisions made in various interlocutory decisions dated 21 September 2007, 23 November 2007, 16 April 2008 and 30 May 2008 and 16 March 2009 respectively.  I shall refer to them collectively as "the interlocutory costs orders".

15.  The Plaintiff, was represented by Mr Peter Duncan SC and Mr Tony Ko, and the Defendants, Mr Peter Ng SC and Mr Raymond Leung.

The Judgment

16.  Disregarding for the moment that the Plaintiff is applying for leave to appeal out of time, leave to appeal should not be granted in any event unless:

"(a)  the appeal has a reasonable prospect of success; or

(b)  there is some other reason in the interests of justice why the appeal should be heard."  Section 63A(2) DCO.

17.  The Plaintiff's claim can be briefly stated.  On disability discrimination, it was her case that she suffered from these disabilities in about June 1997:

(i)  neck injury;

(ii)  severe muscular and other pains in neck and right arm;

(iii)  substantially increased immobility; and

(iv)  regular high fevers.

18.  She alleged that with knowledge of such disabilities, the 2^nd and 3^rd Defendants made "unjustifiable criticisms against her work performance whilst ignoring the poor work performance of the other employees".  Judgment Para. 8.

19.  On SDO, her complaints have been summarized by the learned Judge as follows:

"10.  It is Madam Sit’s case that she had been treated less favourably by reason of her gender in the following instances:

(i)  Madam Sit had never been allowed to act up the post of the Chief Executive, whereas Mr. Tong was appointed as Acting Chief Executive whilst Madam Ho was on leave or absent from office in the respective periods from 2 December 1996 to the end of January 1997 and from 29 May to 13 June 1997;

(ii)  Mr. Tong was selected to attend a training course at Tsing Hua University in March and April 1997 organised for the senior staff of the EOC;

(iii)  Mr. Tong was given paid leave to attend an overseas conference relating to disability issues in Seoul from 23 to 30 September 1997;

(iv)  Mr. Tong was given favourable treatment in the case review exercise in that he was allowed to discuss with Madam Ho on the conduct of the exercise and was given time to rectify his mistakes;

(v)  there had been a number of complaints made against Mr. Tong whereas there was no such complaint lodged against Madam Sit, and yet more favourable treatment was given to Mr. Tong in various matters in the daily operation of the EOC;

(vi)  Madam Sit’s employment was terminated without complying with the Procedures for Handling Complaints and Grievances from EOC staff and Disciplinary Policy and Procedures of the EOC, where such Procedures were invoked in the case of the treatment of two other male employees of the EOC.

Madam Sit therefore claims that the Defendants had unlawful discriminated against her by reason of her gender.

11.  Regarding the claim for sex discrimination by way of victimisation, Madam Sit alleges that in a meeting with Dr. Cheung in May 1997, she asked Dr. Cheung to offer her the opportunity of acting up the post of Acting Chief Executive. During the meeting, Madam Sit asked Dr. Cheung about the selection criteria for choosing the acting appointee, to which she received no reply.  Madam Sit then indicated that the EOC might be guilty of sex discrimination if she was not allowed to act up such post.

12.  As the EOC had no selection criteria for choosing the acting appointee, the EOC was in breach of the Code of Practice on Employment under the SDO issued by the EOC itself.  By denying her the opportunity of acting up, wrongfully accusing her of performing poorly at work and terminating her employment without giving any reason or opportunity for her to explain, Madam Sit claims that there had been sex discrimination by way of victimisation against her."

20.  The Defendants' case was that the Plaintiff's employment was terminated because of "5 areas of deficiency of (the Plaintiff) …", Para. 16, and they relied on the 9 Incidents set out in Para. 15 "to support their allegation that the work performance of (the Plaintiff) was sub-standard".  In relation to the claim on sex discrimination by way of victimisation, the Defendants' case was that:

"21.  … (the Plaintiff) had never mentioned to (the 2^nd Defendant), whether in a meeting in May 1997 or on any other occasions, that the EOC would be guilty of sex discrimination if (the Plaintiff) was denied the opportunity of acting up the post of Chief Executive. …"

21.  The 9 Incidents were:

"(i)  failing to properly relate instructions to, and to supervise, her subordinates regarding the preparation for a visit of the All China Federation of Women from Mainland China in July 1997;

(ii)  failing to properly relate instructions to, and to supervise, her subordinates in the preparation of a brief to commission a research study on the 'genuine occupational qualification' under s. 12 of the SDO;

(iii)  failing to ensure that the latest version of the Executive Summary of the 'Baseline Survey on Equal Opportunities on the Basis of Gender' as approved by Dr. Cheung was sent to the Government Printer;

(iv)  failing to properly handle and respond to a complaint by the Hong Kong Federation of Trade Unions delegation and the Coalition on Concern for Women's Employment Rights regarding the incompatibility between certain provisions of the SDO and the Women and Young Persons (Industry) Regulations ('the WYPIR') between November 1996 and April 1997;

(v)  insufficient knowledge, poor presentation skills and poor performance in answering questions relating to the incompatibility of certain provisions of the SDO and the WYPIR at a public seminar held by the EOC on 5 May 1997;

(vi)  failing to properly plan and organise the formulation and drafting of the Code of Practice under the Family Status Discrimination Ordinance, Cap. 527 according to the instructions given by Madam Ho in July 1997;

(vii)  failing to review all the complaints files handled by the Gender Division in accordance with the instructions given by Madam Ho, relying on subordinates to conduct the case review exercise for her, and Madam Sit's defensive and unpleasant attitude towards Dr. Cheung when inadequacies of the case review exercise were pointed out to her;

(viii)  failing to properly supervise, monitor, direct or report the development of the Computerized Complaint Handling System ('CCHS') between March and September 1997 and delegating the work to her subordinates without proper communication or supervision resulting in complications in a contractual dispute with LECCO Consultants Limited ('LECCO'), the supplier and developer of the CCHS, and Madam Sit's defensive and unpleasant attitude towards Dr. Cheung and Madam Ho when the above failures were pointed out to her; and

(ix)  failing to prepare for management meetings resulting sometimes in Madam Sit having to leave the meetings to consult with her subordinates in order to answer queries from the management regarding issues within her sphere of responsibilities including: (a) the visit of the All China Federation of Women as mentioned above; (b) the 'genuine occupation qualification' as mentioned above; and (iii) the CCHS project."

22.  The learned Judge after hearing the oral evidence of the Plaintiff and a number of witnesses for the defence including the 2^nd and 3^rd Defendants, concluded:

"150.  … On the whole, I find all the Defendants’ witnesses to be honest and truthful witnesses."

23.  The learned judge was satisfied that the termination of the Plaintiff's employment and the Defendants' conduct towards her were not in any way caused by her gender or her alleged disabilities and that none of the alleged unlawful acts relied on by the Plaintiff was made out.  Nor had she been victimized as alleged or at all.  He said:

"162.  Regarding the complaints of disability discrimination and harassment, even for the purpose of argument that Madam Sit was taking more than 3.5 days of sick leave in the period from May to September 1997, there is no evidence to show that anyone in the EOC did pay particular attention to the amount of sick leave taken by Madam Sit.  In this regard, I also accept the evidence of the Defendants’ witnesses that according to their perception, Madam Sit was not taking more than the normal amount of sick leave at the material time.  In fact, if the management of the EOC was concerned about the disability and the sick leave, there should have been some mention in the documents or correspondence referring to the frequent absence of Madam Sit in the office, and yet there was none in the present case.  Further, the disabilities alleged by Madam Sit were not particularly serious, and such trivial matter should not have caused any concern to the management of the EOC.  The evidence also shows that Madam Papadopoulos was suffering from a more serious kind of sickness at the relevant time, and yet Madam Papadopoulos was offered the opportunity of acting appointment and her employment was not terminated by the EOC.  It clearly shows that the management of the EOC had no bias against disability and the treatments received by Madam Sit were not in any way influenced by such proscribed ground.

……

176.     The claim on discrimination by way of victimisation is based on the alleged 'hint' of sex discrimination made by Madam Sit in a meeting with Dr. Cheung in May 1997.  Since I prefer to accept the evidence of the Defendants’ witnesses, I do not find that Madam Sit had made such accusation whether in that meeting or on any other occasions.  As Madam Sit has failed to prove that the Defendants were aware of any of the acts mentioned in s. 9(1)(a) to (d) of the SDO and the subsequent treatments received by her had nothing with her gender, Madam Sit’s claim for discrimination by way of victimisation must also fail."

24.  In coming to his conclusion the learned judge followed the approach recommended by Lord Nicholls in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 and concentrated on the factual enquiry why the Plaintiff was treated in the way she was (Para. 134).

25.  Lord Nicholls said:

"7.  … When the claim is based on direct discrimination or victimisation, in practice tribunals in their decisions normally consider, first, whether the claimant received less favourable treatment than the appropriate comparator (the 'less favourable treatment' issue) and then, secondly, whether the less favourable treatment was on the relevant proscribed ground (the 'reason why' issue).  Tribunals proceed to consider the reason why issue only if the less favourable treatment issue is resolved in favour of the claimant. Thus the less favourable treatment issue is treated as a threshold which the claimant must cross before the tribunal is called upon to decide why the claimant was afforded the treatment of which she is complaining.

8.  No doubt there are cases where it is convenient and helpful to adopt this two step approach to what is essentially a single question: did the claimant, on the proscribed ground, receive less favourable treatment than others?  But, especially where the identity of the relevant comparator is a matter of dispute, this sequential analysis may give rise to needless problems.  Sometimes the less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue.  The two issues are intertwined.

9.  … She had been the subject of complaints and of representations by Police Federation representatives, the male chief inspectors had not.  This might be the reason why she was treated as she was.  This might explain why she was relieved of her responsibilities and they were not. …

  ……

11.  This analysis seems to me to point to the conclusion that employments tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was.  Was it on the proscribed ground which is the foundation of the application? That will call for an examination of all the facts of the case.  Or was it for some other reason?  If the latter, the application fails.  If the former, there will be usually be no difficulty in deciding whether the treatment, afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others."

26.  Mr Duncan submitted that the learned judge was wrong in following the approach of Lord Nicholls in Shamoon.  He submitted that there is an important difference between the legislation under consideration in Shamoon [Sex Discrimination (Northern Ireland) Order 1976] and the Hong Kong legislation.  He pointed to the fact that under section 3 of DDO and section 4 of SDO, it would suffice if the discrimination was a reason (whether or not it is the dominant or a substantial reason for doing the act) whereas in England or Ireland, it may be as Lord Nicholls said in Nagarajan v London Regional Transport [2000] 1 AC 501 at 512 – 513, discrimination is made out only if the proscribed acts "had a significant influence on the outcome".

27.  But, the approach recommended by Lord Nicholls does not depend on whether the discrimination was a reason or the dominant or a substantial reason. 

28.  Mr Duncan then submitted that the learned judge's adoption of the Shamoon approach might have been led him to think that the Plaintiff's claim on discrimination would fail even if one of the proscribed grounds was a reason for her treatment.  With respect, there is no indication that the learned judge was under any such misapprehension.  Indeed, as Mr Peter Ng has pointed out, it is obvious from the judgment that the learned judge had categorically rejected the Plaintiff's suggestion that the Plaintiff's treatment had anything at all to do with any of the proscribed reasons.  The learned judge said:

"159.    … But in my judgment, there is not even one single hint in the evidence which may suggest that the management decisions of the EOC were affected by the proscribed grounds."

29.  On the victimization claim under section 9(1) SDO, Mr Duncan submitted that although the learned judge had on the fact rejected the Plaintiff's case that the Defendants knew the Plaintiff intended to make an accusation of sex discrimination, the learned judge erred in that he failed also to consider whether the Defendants or any of them "(suspected) (the Plaintiff) … has done, or intends to do, any of them"  See section 9(1)(d) SDO.

30.  But as Mr Ng has pointed out, the Plaintiff had not pleaded, proved or argued at trial an alternative case on the basis that the Defendants suspected that the Plaintiff had intended to make an accusation of sex discrimination.  Her case was that she had raised the subject with the 2^nd Defendant but that evidence was rejected by the learned judge.  See para. 23 above and para. 176 of the Judgment.

31.  Then Mr Duncan relied on what he described as errors in fact findings. 

32.  First, he criticized the learned judge when he said in para. 177 of the judgment that:

"177.    … I must add that the victimisation claim was only made by Madam Sit by way of amendments to the pleading in 2007. …"

33.  It is said to be factually inaccurate because she had raised such a claim in her 1^st witness statement which was filed on 10 September 2003.  In my view, the learned judge was perfectly correct in saying that a claim was only made in the action by way of amendment in 2007. Secondly, her witness statement is unclear.  She said in para. 25:

"It is clear that I have been victimised for having raised the question of acting appointment with the 2^nd Defendant in May 1997, for querying her standard of selection and for expressing my dissatisfaction."

34.  The 2^nd suggested error is that the learned judge accepted the Defendants' evidence that "further (written) warnings would not help" where in fact no written warning was ever given.  This is a matter of semantics.  I do not believe this has any consequence.

35.  The 3^rd suggested error is that the learned judge said in para. 48(iv) of the Judgment that even the Plaintiff herself had recommended a male to act up every time she was absent from office, thereby undermining her claim of sex discrimination.  Mr Duncan submitted that the learned judge was wrong when he said that Mr Joseph Li acted up every time when she was absent from the office.  The evidence was that he only formally did so on one occasion for 7 days.  The Plaintiff's oral evidence was that apart from that occasion when Mr Li formally acted up for her "but when one or two days, sometimes he sit … he sat in for me."  Transcript 179E.  There is nothing in this criticism. 

36.  Fourthly, Mr Duncan submitted that the learned judge was wrong to rely on the 911 Memo (see para. 166 of the judgment) when the 2^nd Defendant had admitted that "the decision to terminate Madam Sit's employment had already been made by that time and so the 911 Memo did not contribute to Madam Sit's dismissal."  Para. 63 of the Judgment. 

37.  But as Mr Ng has explained the reference to the 911 Memo by the learned judge was necessary to deal with the Plaintiff's allegation that there was a sinister motive behind the shredding of the 911 Memo.

38.  The last suggested error was that the learned trial Judge found that the termination of the Plaintiff's employment was "not a disciplinary matter".

39.  But whether that is so or not, it has no direct bearing on whether the Plaintiff's claims under the DDO and SDO were made out.

40.  For the above reasons, I am of the view that leave to appeal out of time should not be granted because the appeal has no reasonable prospect of success.  Nor is there some other reason in the interests of justice why the appeal should be heard.  Quite the contrary, this claim should be stopped now. As will have been noted, the events complained of by the Plaintiff took place in 1997, but the trial only took place in 2009.  As the learned judge said in the Decision:

"16.  Undoubtedly, the Plaintiff is mainly responsible for the delay in the proceedings. …"

Costs

41.  Sections 73B(3) and 73C(3) provide that each party to such proceedings:

"(3) … shall bear its own costs unless the Court otherwise orders on the ground that-

(a)  the proceedings were brought maliciously or frivolously; or

(b)  there are special circumstances which warrant an award of costs."

42.  The learned judge ordered costs against the Plaintiff on the basis that the proceedings were brought frivolously and that there were special circumstances which warranted an award of costs.

43.  In holding that the claim was frivolous, Judge Lok repeated what he said in Cano-Shearer Anne and others v Cathay Pacific Airways Ltd. (unreported, DCEO 1/2001, dated 1 November 2002) as follows:

"24.  A case is obviously frivolous when the claimant subjectively knows that it is unmeritorious. A case may also be frivolous when objectively considered it is plainly without foundation and is bound to fail.  In E.T. Maler Ltd. v. Robertson [1974] 1 ICR 72, the English National Industrial Relations Court was asked to consider, inter alia, the issue of costs relating to an appeal from the Industrial Tribunal.  Under the relevant statutory provision, the Tribunal should not normally award costs unless it considers that a party has acted frivolously or vexatiously.  Sir Hugh Griffiths said the following in p. 76:

'If the employee knows that there is no substance in his claim and that it is bound to fail, or if the claim is on the face of it so manifestly misconceived that it can have no prospect of success, it may be deemed frivolous and an abuse of the procedure of the tribunal to pursue it.'

……

'In Delmonaco v. NRU Worklife Pty Ltd. (ADT of Vic, 3 April 1997), … … … the Tribunal said:

"We therefore find that the Respondent has been put to needless expense in defending a claim that should not have been brought against her.  It is not simply a case of a complaint having failed.  It is a case where a Complainant has made a complaint without any reasonable grounds for expecting that it might succeed.  In such circumstances, we think that it is appropriate to order costs in favour of the Respondent."'"

44.  With respect, I agree with this approach. 

45.  The learned judge went on to explain why he regarded the Plaintiff's claim to be frivolous.  He said:

"9.  At the trial, the evidence showed that the Plaintiff's claim is totally without merits.  The EOC's then Legal Adviser, Madam Alexandra Papadopoulos, was a female senior staff who was of the same rank as that of the Plaintiff.  She was taking more sick leave than the Plaintiff, and yet she was offered the opportunity of acting up the post of the Chief Executive and there was no suggestion to terminate her employment like that of the Plaintiff.  The Plaintiff was not asked to attend the overseas conference in Seoul because that conference was about disabilities issues, and the conference was not directly related to the work of the Plaintiff who was responsible for gender issues.  In fact, the Plaintiff attended an overseas conference on gender issues in Miami much earlier on her own, and it was therefore quite absurd for the Plaintiff to say that she had been unfairly treated in this regard.  Further, the staff members of the EOC took turn to attend the training courses at Tsing Hua University and the selection process in respect of the first course had nothing to do with the gender of the staff members concerned.

10.  … there was no evidence to substantiate the complaints which were no more than suspicion on the part of the Plaintiff.  Further, there was not even one single hint in the evidence which might suggest that the management decisions of the EOC were affected by any of the proscribed grounds, nor was there any evidence to show that the EOC had been adopting a discriminatory practice against any of its employees.

11.  Based on the evidence in the present case, there are amble reasons for the court to conclude that the Plaintiff’s claim was brought frivolously.  If the Plaintiff had been more objective, I would expect her to reach the same conclusion about the merits of her claim. … But if one approaches the facts of the case objectively, one would not be too difficult to reach the conclusion that the Plaintiff’s claim should not have been brought in the first place.  I therefore order the Plaintiff to pay for the costs of the action under the first limb of ss. 73B(3) and 73C(3) of the DCO."

46.  Mr Duncan for the Plaintiff submitted that it is reasonably arguable that the learned judge was mistaken.  Essentially, Mr Duncan's point is that the Plaintiff's employment had been terminated without any prior warning and when her solicitors first sought an explanation from the 1^st Defendant, the 1^st Defendant's reply dated 30 September 1997 was:

"Under law, the Commission is not obliged to provide reasons for termination of your client's employment contract."

47.  And it was not until 3 November 1997 that certain minutes of the special meeting of the Administration and Finance Committee of the EOC held on 24 September 1997 were supplied to the Plaintiff's then-solicitors AB Nasir & Co. who were told that the minutes set out the reasons for the termination.  It appeared in the minutes that the Plaintiff's alleged deficiencies in respect of her work was discussed and the meeting concluded unanimously that she "was clearly inadequate for the post of a Divisional Director. … and that (her) employment should be terminated immediately according to the terms of her contract in order not to affect staff morale and EOC's operation."

48.  Mr Duncan submitted also the fact that she was able to complete her probation in March 1997 and was confirmed in her position undermined the 1^st Defendant's case that the termination was solely for the reason of her work performance.  Further there was the fact that she had often been sick and also that she had queried why she had not been allowed to act up to show that her claim was not such that, when viewed objectively, it was bound to fail. 

49.  But the claim was commenced on 24 September 1999 long after she had been provide with the minutes setting out for deficiencies in November 1997.  Moreover, it is clear from the Decision, which was reached with the benefit of oral evidence, that the learned judge regarded the Plaintiff's claim to be totally without merits.

50.  After giving the matter careful consideration, I have come to the conclusion that the Plaintiff's proposed appeal is not reasonably arguable.  The learned judge had had the conduct of the proceedings for a long time, and the benefit of oral evidence from the Plaintiff and the Defendants.  The learned judge was aware that unless he was of the view that the claim was frivolous within the meaning which he ascribed to the expression he should not make an order for costs against the Plaintiff.  It will be recalled that the Decision followed a hearing where the Plaintiff was represented by leading and junior counsel.  So, no doubt, all that could be said had been said on her behalf.

51.  In such circumstances, I see no basis upon which this Court might interfere with the learned judge's exercise of discretion.

52.  The learned judge also went on to say that, in addition, there were special circumstances on which he could and would make a costs order against the Plaintiff (para. 12).  Mr Duncan submitted that the learned judge relied on precisely the same reasons in support of his conclusion that the claim was frivolous as the foundation for ordering costs because there were special circumstances which justified such an order.  He submitted that this is contrary to the decision of L v Equal Opportunities Commission and others, DCEO 1/1999, 23 June 2003, where Deputy High Court Judge Muttrie said that:

"8.  … I am being asked to find special circumstances. I do not think I can rely on the conduct which the defendant says was vexatious as a special circumstances.  Mr. Coleman for the Plaintiff says that the defendant should not be able to get costs by the 'back door' in this way and I agree."

53.  I accept that the ordinary rule that costs should follow the event does not apply to proceedings under the SDO and DDO so that genuine claims should not be discouraged.  We have not been referred to any authority on what may constitute special circumstances. 

54.  What may amount to special circumstances will have to await adjudication on a different occasion.  It is unnecessary for us to express any view on the matter since I am satisfied that the learned judge's decision on the frivolity of the Plaintiff's claim is correct.

55.  At one stage Mr Duncan suggested that the learned Judge ordered the Plaintiff to pay costs because the Defendants happened to be the organization responsible for enforcing the relevant ordinances.  But when the passages relied on by Mr Duncan were read in context, it was obvious that it was a false point and was not pressed.

Interlocutory costs

56.  Mr Duncan quite sensibly made no oral submissions.  It will be recalled that on 16 March 2009, the learned judge set aside the judgment given on 3 November 2008.  It is clear from the reasons for decision handed down on 2 April 2009 that the learned judge was only prepared to do so on the basis that the Plaintiff should pay not only the costs thrown away or occasioned by the setting aside of the judgment, but that the Plaintiff should pay $450,000 as security for the costs of earlier interlocutory costs orders.  Since then, those costs have been taxed and paid.  It appears from the decision of 2 April 2009, that the Plaintiff, through her counsel (Mr Dykes and Mr Lee) did not object to paying those costs, as a condition for the setting aside of the 3 November 2008 judgment.  See paras. 39 and 41.

57.  In such circumstances, I would refuse leave to appeal out of time.

Conclusion

58.  To conclude, I would dismiss the Plaintiff's application with a costs order nisi that she pays the Defendant's costs to be taxed unless agreed.

Hon Fok JA:

59.  I agree.