PETER EDWARD REES JORDAN v. THE HONG KONG ACADEMY FOR PERFORMING ARTS AND ANOTHER

DCEO 4/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO 4 OF 2015

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D E C I S I O N

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1.  This is a discrimination claim by the claimant (“Jordan”). The 2^nd respondent (“Sherlock”) applies to strike out part of the amended notice of claim or alternatively for summary determination. The 1^st respondent (“HKAPA”) stands by such application and if the same is granted, would invite the court to consider on its own motion the dismissal of the relevant part of the claim against it as well.

THE PARTIES

2.  Jordan was employed by the HKAPA in 1998 and became the Head of Acting of the School of Drama in 2007.  He went on sick leave in August 2009, and his term of employment was extended in August 2010.  He was re-employed in April 2011 until the end of August 2013.

3.  Sherlock was employed by the HKAPA in 2010 as the Head of Directing and Playwriting.  In September 2011, he became the Dean, now known as the Chair, of the School of Drama and thus the superior of Jordan at work at the material times.

THE CLAIM

4.  The present application proceeded solely on the basis of the assertions and contentions pleaded in the amended notice of claim.

5.  Following an account of the parties as summarised above, the pleading continues with various alleged contractual terms of Jordan’s employment with the HKAPA[1], and the alleged relationship between Jordan and his colleagues, in particular the former Dean of the School of Drama (“Dean Tang”) and Sherlock[2].

6.  Jordan continues in his pleading by referring to the alleged rumours about Sherlock’s conduct towards students that persisted during the period between May and December 2011.  In the course of a subsequent conversation between Jordan and Sherlock on 16 December 2011, Jordan mentioned the complaint by the students about the conduct of Sherlock when directing a play (“the December Conversation”)[3].  The conversation ended abruptly, when Sherlock became defensive, rejected the allegations and left angrily without waiting for Jordan to clarify which aspects of Sherlock’s conduct he was referring to.

7.  Jordan then complains about the alleged victimisation and unlawful retaliation by Sherlock against him between December 2011 and February 2012.  This included[4]:

(1) Sherlock’s letter dated 16 December 2011 to Jordan, which was copied to various academy personnel, containing attacks and allegations against Jordan (“the December Letter”), which he came across upon his return from leave in January 2012; and

(2) Sherlock’s announcement dated 29 February 2012 of the restructure plan of the School of Drama for the term commencing 2012/2013 that entailed the redundancy of Jordan (“the Redundancy Announcement”).

8.  As a result, Jordan conducted, among other things, further investigation into the students’ complaints about Sherlock, and eventually lodged a formal discrimination complaint to the HKAPA (“the Whistle Blowing Act”)[5] about:

(1) potential sexual harassment including instances of inappropriate or unwelcome physical contact with male and female students by Sherlock; and

(2) professional misconduct by victimising Jordan after the December Conversation about the conduct mentioned in (1) above.

9.  By reason of the above history, Jordan claims to have assisted complainants and witnesses of acts of sexual harassment, and is thus a person victimised under section 9(1) of the Sex Discrimination Ordinance, Cap 480 (“SDO”)[6].

10.  The victimisation allegedly took the form of a campaign by Sherlock to undermine and sabotage Jordan’s position as Head of Acting as well as his professional reputation as an educator and artist.  Such campaign is said to have started as early as 16 December 2011 and lasted until the expiry of his letter of appointment at the end of August 2013[7]. Apart from the events since 16 December 2011 mentioned above, Jordan refers to the following events:

(1) personal attacks by Sherlock against Jordan in writing on 23 March and 8 May 2012 through formal disciplinary procedure[8];

(2) publication of false allegations against Jordan in writing on 13 May 2012 to external parties during the course of formal investigation[9];

(3) express refusal in September 2012 to recommend the renewal of Jordan’s employment contract[10];

(4) sidelining Jordan and removal from him of employment duties from April 2012 to the expiry of his employment term[11];

(5) making untrue and exaggerated comments calculated to vilify and blacken Jordan’s name in staff appraisal in July 2013[12]; and

(6) unreasonably refusing to allow Jordan’s application for permission to take outside work in March 2013[13].

11.  Jordan contends that by reason of the matters mentioned above, Sherlock victimised Jordan on account of the Whistle Blowing Act[14], and as a result treated him less favourably than Sherlock would treat a person who had not provided information of sexual harassment or conduct against him.

12.  As regards the HKAPA as his employer, Jordan contends that it is (vicariously) liable for Sherlock’s conduct as summarised above[15].

13.  Further, the HKAPA on its own right is said to have directly victimised Jordan in the following manner:

(1) The disciplinary proceedings against Sherlock were procedurally questionable and unsound and resulted in a whitewash of Sherlock’s conduct.  As a result, the HKAPA implemented an unfair performance evaluation in respect of Jordan; and the HKAPA and Sherlock were able to and did rely on the unsafe and unsatisfactory findings of the proceedings to discriminate against, victimise and treat Jordan less favourably in his staff appraisal[16].

(2) Contrary to the guidance notes for academic staff appraisal system, the involvement of Sherlock resulted in unfair and unconstructive staff appraisal of Jordan[17].

(3) Contrary to his constitutional and statutory rights to be associated with and represented by his trade union, Jordan received a letter from the HKAPA dated 3 May 2013 accusing him of disclosing confidential information concerning the disciplinary hearings to his trade union; and was invited to a meeting for resolving his differences with Sherlock but without a lawyer on 14 May 2013.  No similar steps had been taken in respect of Sherlock[18].

14.  In the above manner, the HKAPA is said to have directly victimised Jordan on account of his provision of information and the Whistle Blowing Act in that he was treated less favourably than it would treat another employee who had not done so[19].

15.  A series of remedies and reliefs are claimed against both respondents[20], which have been explained by subsequent further and better particulars.

16.  Both respondents have filed their respective amended notices of response, which was followed by Jordan’s combined reply.

THE APPLICATION

17.  By summons filed on 22 December 2015, Sherlock applies to strike out some 20 paragraphs of the amended notice of claim in relation to the acts, complaints and allegations pre-dating 11 March 2012 pursuant to O.18, r.19 of the Rules of the District Court (“RDC”) on the ground that the claim based on such allegations are:

(1) time-barred under section 86(1) of the SDO;

(2) discloses no reasonable cause of action;

(3) is frivolous or vexatious; or

(4) is otherwise an abuse of process of the court.

18.  Alternatively, Sherlock applies for the determination of the above limitation contention by the court under O.14A of the RDC.

19.  It is trite that striking out under O.18, r.19 would be ordered only in plain and obvious case.  O.14A may be invoked where it appears that the question of law or construction is suitable for determination without a full trial, and such determination will finally determine the entire cause or matter or any claim or issue.  The two are put forward as the alternative routes towards the same end in the present application.  The court practically has to be satisfied that such part of Jordan’s claim, on the basis of the pleading alone, is bound to fail whichever route it takes.

SDO

20.  Section 9 of the SDO provides that:

“(1) A person (the discriminator) discriminates against another person (the person victimised) in any circumstances relevant for the purposes of any provision of this Ordinance if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised or any other person (the third person) has –

......

(d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Ordinance,

or by reason that the discriminator knows the person victimised or the third person, as the case may be, intends to do any of those things, or suspects the person victimised or the third person, as the case may be, has done, or intends to do, any of them.

......”

21.  Section 76(1) of the SDO provides that:

“A claim by any person (the claimant) that another person (the respondent) –

(a) has committed an act of discrimination against the claimant which is unlawful by virtue of Part 3 or 4;

......

may be made the subject of civil proceedings in like manner as any claim in tort.”

LIMITATION

22.  Section 86 of the SDO sets out the period within which proceedings to be brought under section 76:

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

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

(b) [admittedly not applicable],

whichever is the later.

......

(2A) For the purposes of determining the period under subsection (1) within which proceedings may be brought, where an act to which the claim relates was the subject of a complaint lodged under section 84(1), then the period that elapsed between the date when the complaint was lodged and the date when the complaint was disposed of under section 84(3) or (4), as certified in writing by the Commission, shall be disregarded.
(3) Notwithstanding subsections (1) ..., the District Court may consider any claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.

(4) For the purposes of subsection (3), the circumstances of the case include, in relation to any claim, whether the act to which the claim relates was the subject of a complaint lodged under section 84(1) and, if so, the period that elapsed between when the act was done and when that complaint was so lodged.

(5) For the purposes of this section –

......

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

......

......”

23.  On 20 March 2013, Jordan filed his complaint against the respondents herein with the Equal Opportunities Commission (“the Commission”) pursuant to section 84(1) of the SDO.  By letter dated 31 July 2013, the Commission informed Jordan of its refusal to grant legal assistance.  Issued with such letter was the Commission’s certificate under section 86(2A).  The period between the date when complaint was lodged under section 84(1) and the date when conciliation under section 84(3) was certified to be 13 months and 3 days, as far as Sherlock was concerned[21].

24.  The present action was commenced on 13 April 2015.  24 months plus 13 months and 3 days prior to that would be 10 March 2012.  Mr McLeish (appearing with Mr Kwong) for Sherlock submitted that a claim on the basis of any act complained of prior to 11 March 2012 (“the Limitation Date”) shall not be considered.

25.  Mr McLeish understood the pleaded case of Jordan to be this: Jordan was victimised on account of the Whistle Blowing Act.  Such act consisted of his formal complaint about (i) the potential sexual harassment of students by Sherlock, and (ii) professional misconduct of Sherlock by victimising Jordan after the December Conversation about (i).  The victimisation and unlawful retaliation on account of the act took the form of the December Letter and the Redundancy Announcement.  Both the December Letter and the Redundancy Announcement predated the Limitation Date.  Pursuant to section 86(1), claim on the basis of such alleged victimisation, Mr McLeish submitted, should not be considered by the court.

26.  For the present purpose, Mr Barnes for Jordan did not dispute the calculation of the Limitation Date.  Nor did he dispute that the December Conversation, the December Letter and the Redundancy Announcement on their own were events predating the Limitation Date.  The major difference between the parties lies in the applicability of section 86(5)(b).  Mr McLeish acknowledged any act extending over a period shall be treated as done at the end of that period pursuant to section 86(5)(b).  But he submitted that it does not apply in the present case.

The case law

27.  Both counsel referred to Tsang v Cathay Pacific Airways Ltd [2002] 2 HKLRD 678.  One of the issues, which is relevant to the present application, was limitation and section 86(5).  For that, the appellate court considered the various English authorities on the application of the equivalent English provision, section 76(6)(b) of the Sex Discrimination Act 1975.  Distinction was made between a complaint of a “one-off” discriminatory decision, albeit with continuing consequences, and one that was not.

28.  In Calder v James Finlay Corp Ltd [1989] IRLR 55, the Employment Appeal Tribunal considered that by constituting a scheme under the rules of which a female could not obtain the benefit that her male colleagues were eligible for constituted continuing discrimination against her so long as she remained in the employment.  Alternatively so long as her employment continued, the employers subjected her to “any other detriment” within section 6(2)(b), which is equivalent to section 11(2)(c) of the SDO here.

29.  Calder was considered in Barclays Bank Plc v Kapur [1991] ICR 208 where Lord Griffiths described the situation there as a “continuing state of affairs”.

30.  In Owusu v London Fire and Civil Defence Authority [1995] IRLR 574 (at 576), Mummery J considered that a continuing act may take the form of maintaining a practice which, when followed or applied, discriminates against a complainant.  An act extends over a period of time if it takes the form of some policy, rule or practice, in accordance with which decisions are taken from time to time.  This was cited with approval in Cast v Croydon College [1998] ICR 500 (at 508), when Auld LJ described an act extending over a period of time as one of the application of a discriminatory policy or regime pursuant to which the decisions may be taken from time to time.  The principles were applied in Tsang.

31.  Subsequent to the above cases (and the Hong Kong case of Tsang), his lordship in Owusu, now Mummery LJ, had the chance of explaining the concept of “an act extending over a period” in Commissioner of Police of the Metropolis v Hendricks [2003] 1 All ER 654 (at §52):

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

32.  The recent Hong Kong case of Tadjudin v Bank of America, National Association [2012] 5 HKLRD 115 applied the law as explained above.

Jordan’s case

33.  Mr McLeish submitted that unlike the context of the above authorities, Jordan and Sherlock were not in an employee-employer relationship.  In my view, the distinction is not one, at least in the circumstances of this case and at this stage, that would negative the applicability of the relevant principles.  I will address this further when discussing a fellow employee’s personal liability for discrimination.

34.  More importantly, Mr McLeish submitted there is, and can be, no allegation that the December Letter or the Redundancy Announcement was specific act of application of a discriminatory policy or regime.  Therefore section 86(5) does not come to Jordan’s assistance.

35.  As discussed, the concepts of, among others, policy, regime and practice are not to be treated as a complete and constricting statement of the indicia of “an act extending over a period”.  The question is whether those were such acts as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed.

36.  Applying the principles so understood, the then Ag. CDJ in the case of Tadjudin observed that the plaintiff tin that case indeed complained of discriminatory acts, which were pleaded to be continuous or interlinked instead of isolated and unconnected, throughout her employment over the years.  It might or might not be found at the end of the day that those acts were so upon hearing of the evidence.  However the court refrained from concluding by way of striking out.

37.  Mr McLeish submitted that Jordan is not asserting discriminatory acts in such manner as in Tadjudin.  In my view, the pleaded case of a plaintiff should not be so restrictively read for the purpose of consideration of striking out. It is true that Jordan did not literally describe the numerous events as incidents of discrimination linked to one another and thus a continuing discriminatory state of affairs covered by the concept of “an act extending over a period”.  However, §§ 22-24, 32-42 and 43 of the amended notice of claim are pleaded in a way that they are meant to be read together.  Sherlock has allegedly victimised Jordan on account of the Whistle Blowing Act resulting in less favourable treatment of Jordan than a person who had not done so.  That was expressly pleaded to have been brought about by and based on the discriminatory and victimising campaign against Jordan, the particulars of which started with the December Letter and was followed by the events up to the end of his term of appointment as pleaded in those paragraphs.

38.  The factual circumstances in cases involving allegations of discrimination come in infinite ways of composition.  In my view, the pleading of Jordan reasonably affords the reading that could found the invoking of section 86(5).  In the premises, I also echo the approach of Mummery LJ in Hendricks (at §§48-50), which was adopted in Tadjudin (at §21):

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

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

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

39.  Jordan also relies as an alternative section 86(3) and (4) (above).  This fallback understandably was pleaded in Jordan’s reply as his answer to the limitation defence[22]. In view of the discussion above in respect of section 86(5), I need not embark on discussing the merit of such fallback.

REASONABLE CAUSE OF ACTION

40.  It was argued that even assuming the pleaded events survive the impeachment on the limitation ground, Jordan’s pleading fails to illustrate (i) causation between the alleged events and acts of discrimination; and (ii) the unlawfulness of the alleged acts of discrimination.

Causation

41.  Section 9 of the SDO requires the discriminatory acts to have come about by reason that the person victimised or any other person alleged that the discriminator or any person has committed an act which would amount to a contravention of the SDO.

42.  The ground of attack is that none of the events prior to the Whistle Blowing Act, or the making of the discrimination complaint on 9 March 2012, was said to have brought about or capable of bringing about the alleged discriminatory acts since the Whistle Blowing Act.

43.  On the face of the pleading, literally, the December Letter (16 December 2011) and the Redundancy Announcement (29 February 2012) were alleged acts of victimisation and retaliation against Jordan, not causes of the alleged acts of victimisation on account of or since the Whistle Blowing Act.  What preceded the December Letter and the Redundancy Announcement was the December Conversation.  Jordan has pleaded that the December Conversation was the cause of those, amongst other acts of victimisation, which formed part of the Whistle Blowing Act.

44.  As part of the Whistle Blowing Act, the December Conversation allegedly was about potentially inappropriate or unwelcome physical contact with both male and female students[23].  This differs from the earlier plea of the content of the December Conversation in this respect, according to which Jordan merely explained to Sherlock that students had complained about the latter’s conduct when directing “the Park”, and Jordan had no chance of clarifying which aspect of Sherlock’s conduct he was referring to before Sherlock simply rejected the allegations and dashed out of the room angrily[24]. Sherlock argued that the December Conversation, which made no mention of which aspect of his conduct, let alone an act that would amount to contravention of the SDO, could not be the cause of the alleged acts of discrimination that followed.

45.  I expressed above my view that the pleading ought not to be read in a restrictive manner.  I say here that the pleading must also be read in context as a whole. It has been pleaded that rumours about sexual harassment implicating Sherlock during his direction of the play “The Park” had been circulating for over 6 months until December 2011.  Whilst Jordan took the view that the rumours were not supported by evidence then, the rumours were said to have persistently continued to filter through the students of all classes in the Drama School[25].  Those were the circumstances in which the December Conversation in this respect took place.  That formed the context of the reference to the students’ complaint about Sherlock’s conduct in the December Conversation.

46.  The alleged outright rejection by Sherlock was but the reaction of Sherlock in the conversation.  To say that Sherlock so reacted when he had absolutely no clue what conduct of his in directing “The Park” that Jordan was referring to, notwithstanding the alleged persistent rumours amongst the students of all classes in the Drama School for the preceding half a year, is but one possible way to understand the matter in the context.

47.  Further, whilst he took the view that the rumours against Sherlock by the end of December 2011 was unsupported by evidence, Jordan allegedly kept monitoring the situation as the rumours persisted among all the students of his discipline in the school[26]. Then there came the December Conversation in this respect.  As a result of the reaction of Sherlock upon the December Conversation and the December Letter immediately afterwards, Jordan had since late January 2012 investigated into the potential sexual harassment allegations against Sherlock and obtained statements from the students involved and the witnesses[27].  It was in these circumstances that he came to make the formal discrimination complaint on 9 March 2012, allegedly in discharge of the duties in his position.  Jordan indeed claims to be acting as a person assisting complainants and witnesses of acts of sexual harassment[28]. It was on this basis he claims to be a person victimised within section 9 of the SDO[29].

48.  In the circumstances, the background for the December Conversation, the further investigation that Jordan allegedly undertook as a result of and subsequent to the December Conversation and eventually the Whistle Blowing Act were events that could not be considered in isolation as far as the issue of causation is concerned.  The court needs to find whether the alleged things happened, and then to understand and form a view of how and why those things happened the way they did.  This should be done after hearing the parties and the evidence, not at this stage by mere reference to pleading.

Unlawful discriminatory act

49.  The other pre-requisite to the claim that is said to be lacking is the unlawfulness of the act of Sherlock as the discriminator against Jordan.  Specifically, it was argued that the issuing of neither the December Letter nor the Redundancy Notice by Sherlock was an unlawful act of discrimination.  Further, behind the issuance of the December Letter and the Redundancy Notice, it was argued, had to be the decision of HKAPA, not Sherlock.

50.  As mentioned, section 76(1) permits a discrimination claim where the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part 3 or 4 of the SDO (§(a)) or alternatively, the respondent is treated, by virtue of section 46 or 47, as having committed an act of discrimination against the claimant (§(d)).

51.  Section 11 under Part 3 of the SDO makes it unlawful for the employer to discriminate against, amongst others, woman employees.  For the purpose of section 9(1) mentioned above, reference to discrimination under this Part against women applies equally to the treatment of men: see section 9(3).  Therefore section 11(2) makes it unlawful for an employer to discriminate against his employee in the way he affords his or her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him or her access to them, or by dismissing him or her, or subjecting him or her to any other detriment.

52.  The unlawful acts are broad, and the catchall provision of “any other detriment” covers wide variety of possibilities: see Chief Constable of West Yorkshire Police v Khan [1980] WLR 1947 at §53; Derbyshire v St Helens Metropolitan Borough Council [2007] UKHL 16 at §67; L v Equal Opportunities Commission, DCEO 1 & 6/1999 (13 November 2002) at §46; and Monoghan, Equality Law (2007) at §8.07.

53.  Whether or not the December Letter or the Redundancy Notice constituted unlawful acts of discrimination recognised by the law must be adjudicated upon the evidence of the circumstances surrounding their issuance.  The dispute in this respect is partly factual.

54.  Section 46 provides:

“(1) Anything done by a person in the course of his employment shall be treated for the purposes of this Ordinance as done by his employer as well as by him, whether or not it was done with the employer’s knowledge or approval.

(2) Anything done by a person as agent for another person with the authority (whether express or implied, and whether precedent or subsequent) of that other person shall be treated for the purposes of this Ordinance as done by that person as well as by him.

......”

Section 47 provides:

“(1) A person who knowingly aids another person to do an act made unlawful by this Ordinance shall be treated for the purposes of this Ordinance as himself doing an unlawful act of the like description.

(2) For the purposes of subsection (1), an employee or agent for whose act the employer or principal is liable under section 46...shall be deemed to aid the doing of the act by the employer or principal.

......”

55.  The combined effect of the UK equivalent provisions[30] was summarised by Lord Sedley in Miles v Gilbank [2006] EWCA Civ 543:

“47. The other, and critical, provision for the attribution of liability for discrimination in the employment field is s.42 [section 47 of the SDO]. The first subsection implicates in liability any person who knowingly aids another person to discriminate unlawfully. Recognising, however, that aiding would be an awkward way of describing the relationship between a fellow employee’s discriminatory acts and the employer’s vicarious liability for them, but intending plainly that the fellow employee should not escape personal liability for such acts, the second subsection deems them to amount to aiding. Deeming is treating something as what it is not. The purpose is underscored by the parenthesis in the subsection: it eliminates from the deeming process the exemption from vicarious liability available to an employer under s.41(3). In other words, while the employer may be able to escape liability by showing that it had done what it could to prevent discrimination, the employee who nevertheless discriminates against other staff in the course of his or her employment becomes and remains personally liable for it.

48. The effect is well described in the Discrimination Law Handbook:

“A worker who discriminates ‘in the course of his employment’ such that his employer is liable for it (or would be but for the statutory defence...) is personally liable under the SDA 1975, RRA 1976 or DDA 1995 for that discrimination ... This is because the perpetrator is deemed to ‘aid’ his or her employer’s vicarious liability for his or her actions.  This applies even where the employer makes out the statutory defence ..., in which case the guilty employee will find himself solely liable ...”

56.  In the present case, in the course of his employment as the Dean of the School of Drama at the material time, anything done by Sherlock will be treated to have been done by HKAPA as well as by him for the purpose of the SDO.  If it was an act made unlawful by the SDO, Sherlock will be deemed to aid the doing of the act by HKAPA, and thus will be treated as himself doing such unlawful act.

57.  It was then argued that Jordan did not plead reliance on the wordings of section 47 of the SDO.  However, the deeming provisions operate as a matter of law.  With the pleading of the alleged vicarious liability on the part of HKAPA for the alleged acts of discrimination by Sherlock, Jordan has the requisite basis to proceed on the basis of sections 46 and 47 as well.

58.  In my view, none of the above dispute in respect of the alleged discrimination acts, their unlawfulness or the personal liability of Sherlock for such acts should and could be resolved at this stage, whether by way of striking out or summary determination.

OTHER GROUNDS

59.  I also do not agree that the presence of the alleged events prior to the Whistle Blowing Act could be impeached on the ground that they are irrelevant.  For instance, one cannot properly understand §§33-34 of the amended notice of claim, which I notice are not under challenge for the present purpose, without the pleading of the December Letter under §23.

60.  §14 of the amended notice of claim was singled out for consideration.  This referred to the alleged multiple steps taken by Sherlock to undermine Dean Tang and his leadership.  2 specific emails were cited as evidence.  Such allegation was not part of what transpired between Jordan and Sherlock that allegedly arose out of the implication of Sherlock in potential sexual harassment of the students.  This was pleaded as a particular of the alleged prior relationship between Jordan and Dean Tang and colleagues.  Relevance of such particulars is not challenged, save and except this one.

61.  Sherlock argued that the pleading in this respect is irrelevant, frivolous and vexatious in that it serves merely to prejudice him.  On the contrary, Jordan argued that reference to Sherlock’s attitude towards Dean Tang and his attempts to undermine Dean Tang’s position and reputation would be necessary.  It was said to lend support to the argument that Sherlock was less than genuine when he accused Jordan of behaviour similar to that of Dean Tang, and that Sherlock’s accusations against him were likewise not genuine but triggered by what the December Conversation.

62.  The plea under attack may appeal to one as being of peripheral relevance.  Nevertheless, amongst the other particulars under the same background topic, the relevance of which is not being challenged for the present purpose, I see no clear case for isolating this particular for striking out as if Jordan is not entitled to develop the inference and support from it.  Whether or not he manages to do so will be a matter for the trial judge upon consideration of all the evidence.

CONCLUSION

63.  In short, I do not share the view proposed on behalf of Sherlock that the pleaded case of Jordan is bound to fail, whether via the striking out or the summary determination route.

ORDER

64.  The application is dismissed with costs to Jordan in any event, to be taxed, if not agreed, with certificate for counsel.  Between Jordan and HKAPA, I make no order as to costs, notwithstanding the stance of HKAPA to ride on the outcome of the application.  The costs order is nisi and will become absolute in the absence of application in 14 days for variation.

65.  I thank counsel for their assistance.