SULASIH v. LEUNG KUM

HCME 6/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MINOR EMPLOYMENT CLAIMS ADJUDICATION BOARD

APPEAL NO 6 OF 2011

(ON APPEAL FROM MB 0580 OF 2011 (A))

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BETWEEN

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D E C I S I O N

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1.  This is an application made by Madam Leung, the defendant named in proceedings which were brought against her in the Minor Employment Claims Adjudication Board, for leave to appeal against a decision of the Board made on 17 November 2011.

2.  Under section 31 of the Minor Employment Claims Adjudication Board Ordinance, any party who is aggrieved by a decision of the Board on any ground involving a question of law only, or on the ground that the claim was outside the jurisdiction of the Board, may with leave to appeal granted by the Court of First Instance appeal to the Court of First Instance.  The onus is on the defendant, as the applicant for leave, to show that the intended appeal has arguable grounds of appeal. 

3.  Briefly, a claim for recovery of the sum of $6,746.19 was made against the defendant, aged 87, by her former domestic helper on 28 April 2011.  A defence was filed by the defendant on 31 May 2011.  After unsuccessful attempts were made to arrange a conciliation meeting between the parties, a hearing before the Board was fixed for 9 June 2011.  A notice of hearing dated 28 April 2011 was issued and served on the defendant.

4.  The defendant failed to appear before the Board on 9 June 2011, and the hearing was adjourned to 12 July 2011.  The order for adjournment dated 9 June 2011 was issued and sent to the defendant.

5.  On 12 July 2011, the defendant failed to appear before the Board.  An order was made by the adjudication officer requiring the defendant to pay a sum of $3,400 as security in to the Board, failing which the Board may determine the claim on the basis of the evidence heard in the absence of the defendant.

6.  On 26 July 2011, an Award was entered against the defendant for the sum claimed, interest and costs, totalling $7,046, since no payment was made of the sum of $3,400 which was ordered as security. 

7.  On 31 October 2011, having been notified of the Award made against her, the defendant applied to the Board to set aside the Award which was entered on 26 July.  By an order made by the adjudication officer on 17 November 2011, the defendant’s application was accepted on condition only that the judgment sum of $7,046 is paid into the Board by 1 December 2011 as security.  The order specified that if the payment is not made, the Award made on 26 July 2011 shall remain valid and enforceable.

8.  The defendant now seeks to appeal against the last order of 17 November 2011 on points of law, and the grounds relied upon by her are that:

(1)     the adjudication officer wrongly exercised his discretion to impose the condition for payment of the judgment sum awarded as security; 

(2)     the adjudication officer had wrongly accepted the claim made by the claimant without examining any proof; 

(3)     the adjudication officer has denied the defendant of her chance to defend and to cross-examine the claimant; and

(4)     the adjudication officer had already made up his mind in having persuaded the defendant to pay an amount to the claimant and to settle the dispute.

9.  I will quickly deal with the last‑mentioned point.  Under section 14 of the Ordinance, the Board shall not hear a claim until it has been satisfied that one or more of the parties have refused to take part in conciliation, or conciliation has been attempted but no settlement has been reached, or that conciliation is unlikely to result in a settlement being reached.  The Board has a duty to encourage settlement of disputes, and attempts made at any time to encourage and facilitate settlement by the parties should not be viewed as the Board having prejudged the matter.

10.  There is no question of the Board having no power to order security payment.  Under section 30 (4) of the Ordinance, when a party applies for a review of an order or award made by the Board, the adjudication officer may make such order regarding payment into the Board, giving of security or otherwise as he may think just, having regard to the possibility of assets which may be available to satisfy an award being disposed of.

11.  There is also no question of the Board having no power to determine a claim in the absence of the defendant.  Section 19 of the Ordinance provides that if a defendant fails to appear at a hearing, the Board may determine the claim and make such award or order as it may think fit, notwithstanding the absence of the defendant.  However, the Board may only do so under this section if it is satisfied that a copy of the claim and the notice of the date and place of hearing have been served on the defendant under section 13 of the Ordinance, and the facts relating to the claim are sufficiently established.

12.  Section 13 of the Ordinance requires a copy of the claim, together with a notice of the date and place of hearing the claim to be served on every party concerned, by delivering them personally to the parties concerned by leaving them with some person for a party concerned at his last known place of residence or business, or by sending them by post, addressed to a party concerned at his last known place of residence or business.

13.  According to the file records, the notice of the first hearing on 9 June 2011, and all subsequent orders of the Board, were sent by ordinary and registered post to the defendant’s home address.  With the exception of the first notice of hearing, the documents sent by ordinary post were all returned marked “No such person”, or “Moved out”.  With the exception of the first notice of hearing, the documents sent by registered post were stamped “Unclaimed, return to sender” by the Post Office.

14.  According to the notes of proceedings in the court file, the defendant had faxed a message to the Board saying that she was unable to attend the first hearing on 9 June 2011 as she was unwell, and asked for an adjournment.  The Board granted the adjournment, but the order made by the Board on 9 June 2011, adjourning the hearing to 12 July 2011, was one of the documents which were returned by the Post Office as unclaimed.

15.  On an application for leave to appeal, it is for the applicant to establish that the intended appeal has arguable grounds.  In relation to the defendant’s ground of appeal that the adjudication officer’s decision is erroneous in law or that he had wrongly exercised his discretion to make the setting aside of the award conditional upon the defendant’s payment of the judgment sum, I consider that there are reasonable grounds for appeal.  It is reasonably arguable that when the adjudication officer refused to set aside the Award entered on 26 July 2011, after the defendant failed to appear at the adjourned hearing on 12 July 2011, he had failed to take into consideration the fact that the order of 9 June 2011, whereby the defendant was given notice of the adjournment of the hearing to 12 July 2011, and was posted to the defendant had, on the record, been returned by the Post Office.  Before proceeding with the hearing on 12 July 2011 in the absence of the defendant, the Board had to be satisfied under section 13 of the Ordinance that notice of the date of the hearing had been properly served on the defendant.  The return of the order of 9 June 2011 raised query as to whether the defendant had been properly served with notice of the adjourned hearing on 12 July 2011.

16.  In relation to the appeal on the ground that the adjudication officer had wrongly exercised his discretion, the defendant has reasonable grounds to argue that the adjudication officer had failed to take into consideration the defendant’s reasons for her failure to attend the hearings in June and July 2011, that she was not feeling well, and her claim that she had not received notice of the hearing on 12 July 2011, and the orders and the Award made.

17.  For these reasons, I will grant leave to the defendant to appeal on the points of law raised against the order of 17 November 2011, whereby the adjudication officer refused to set aside the Award entered on 26 July 2011 unconditionally.

18.  In relation to the defendant’s appeal on the ground that the Board had no jurisdiction to award to the claimant the sum of $1,800 as the airfare, when the defendant is only required under the contract to provide an air ticket, I am not satisfied that the defendant has any reasonable grounds.  The claim made, under $8,000, is clearly within the ambit of the claims set out in the Schedule to the Ordinance, as being within the jurisdiction of the Board to deal with.  I do not consider that there are reasonable or arguable grounds on appeal that the adjudication officer was wrong in law to have made the award for $1,800.