FUNG WING YAN ADA v. STEPHEN FINLEY t/a FINLEY & CO.

1997 L.T.A. No. 38

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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J U D G M E N T

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1. The Appellant filed a claim in the Labour Tribunal. A date was fixed for the hearing. At the hearing, the Presiding Officer ordered that the claim be transferred to the High Court. That order for transfer was made pursuant to section 10(2) of the Labour Tribunal Ordinance (Cap. 25) ("the Ordinance"). The Appellant requested the Presiding Officer to review that order. She wanted her claim to be determined by the Labour Tribunal. In due course, she was informed that the review had been fixed for hearing on 26th June.

2. However, in the meantime, the claim was allocated a High Court action number, and a hearing for directions had been fixed for 23rd June. That was in accordance with rule 7(2) of the Labour Tribunal (General) Rules. In those circumstances, the Presiding Officer on 10th June ordered that the review fixed for hearing on 26th June be vacated. The reason given for that was that

"since [the] High Court had already accepted the ... claim by allocating an action number [to it] ... and fixing [a] hearing date on 23rd June [for directions] ... [the] Tribunal does not have jurisdiction to deal with the matter further. Accordingly, the application for review is dismissed."

The Appellant now appeals, with the leave of Yam J., against the order of the Presiding Officer of 10th June ordering that the application for a review be dismissed.

3. When an order for transfer is made by the Labour Tribunal, the assumption of jurisdiction over the claim by the court to which the claim is transferred must be conditional on the order for transfer being confirmed on any review of the order. Otherwise, the unconditional assumption of jurisdiction by the court to which the claim is transferred will deprive the parties to the proceedings of their right to a review of the order for transfer. The position may have been different in the past. Rule 7(2) originally provided:

"The registrar of the court to which the claim is transferred shall appoint a day for the hearing and send notices in the prescribed form to all parties interested and all subsequent proceedings in respect of the claim shall be taken in that court in accordance with the provisions of the Ordinance."

However, by L.N. 127 of 1976, the words in italics were deleted. In my view, the deletion enabled the Labour Tribunal to review an order for transfer, even though the court to which the claim was transferred had assumed jurisdiction over the claim for the time being. It enabled certain proceedings to continue in the Labour Tribunal even though an order for transfer from the Labour Tribunal had been made. Thus, if the order for transfer is confirmed on the review, the order for transfer takes effect according to its terms. If the order for transfer is reversed, the Labour Tribunal continues to have jurisdiction over the claim.

4. Mr. Stephen Finley, the Respondent, referred me to the case of Chan Kam v. Lee Lok [1977-1979] HKC 439. The headnote reads:

"The function of the District Court in its appellate capacity from the Labour Tribunal was to take cognizance of the evidence in the Labour Tribunal and, then, decide whether or not the award was erroneous in law. If the award was correct in law, it was immaterial that it was made for the wrong reasons or despite oversights by the presiding officer."

Mr. Finley argued that even if the Presiding Officer was not prevented from reviewing his original order, it would not be appropriate to require him to review his original order because his original order was correct in law. But the issue is not whether the original order was correct in law. The issue is whether the Presiding Officer's subsequent order preventing the review from going ahead was correct in law. If that was incorrect, as I have found that it was, then it cannot stand simply because an earlier order he made may have been correct.

5. Accordingly, for these reasons, this appeal must be allowed, the order of the Presiding Officer of 10th June must be set aside, and the review of the original order for transfer must proceed on a date to be fixed. I leave it to the Presiding Officer to decide whether he should consider the review or whether he should transfer consideration of the review to another presiding officer pursuant to section 31(5) of the Ordinance.

6. I should add that both solicitors attended this appeal believing that the hearing would be in chambers. That was not correct. Appeals from the Labour Tribunal are no different from other appeals to the Court of First Instance from decisions of statutory tribunals. I mention this only because the mistaken belief of the solicitors in this case may be widespread.