JADE PALACE RESTAURANT CENTRE LIMITED v. LEUNG YIU MING AND OTHERS

IN THE HIGH COURT OF JUSTICE

BETWEEN

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RULING

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1. An award or awards was or were made by the Presiding Officer of the Labour Tribunal on the 17th May 1984 and thereafter on the 24th May 1984 served, inter a1ia, on the applicant. Divers complaints have arisen from this award or these awards, primarily by reason of the alleged injudicious manner in which the same was/were said to have been arrived at. The proceedings which have been taken so far can, by no means, be described as uneventful. Leave to apply for judicial review has been granted by Deputy Judge Barnett who, by implication, must have acceded to counsel's explanation for delay in respect to the relief of certiorari. In fact, the learned Deputy Judge, if I may be permitted to resort to his personal records, has clearly so intimated in his reasons given in support of the leave he so granted to the applicant. Extension of time for applying for an order of certiorari was thus, by necessary implication, granted, though ex parte. No point needed to be or was taken on such ex parte application without notice to the respondents. See R. v. Ashford, Kent Justices, exparte Rich1ey.⁽¹⁾

2. Pursuant to such leave, the court is moved today for various re1iefs set out in the motion. The applicant has the advantage of being represented by no less than Mr. Sceats. Some of the respondents appear in person, whose interests are apparently regarded by the Legal Aid Department to be well protected by the representations to be advanced by the 12th, 15th and the 16th respondents through counsel, Mrs. Barnes from whom I have every reason to expect able and well-reasoned arguments.

3. But before we come to the bone of contention between the applicant and the respondents, there is an initial obstacle which, I am afraid, the applicant has to surmount. That difficulty is created by Order 53 rule 9(2) which reads as follows:

"Where the relief sought is or includes an order of certiorari to remove any proceedings for the purpose of quashing them, the applicant may not question the validity of any order, warrant, commitment, conviction, inquisition or record unless before the hearing of the motion, lodged with the Registrar a copy thereof verified by affidavit or accounts for his failure to do so to the satisfaction of the judge hearing the motion."

4. Mr. James Young has caused to be filed an affirmation on the 27th February 1985 in support of the present application. Mr. Sceats led me through a substantial portion of paragraph 7 which introduces, inter a1ia, "JY-1", a copy of the notes of proceedings before the Labour Tribunal. My attention was drawn to the last two pages of that exhibit which contain under the heading "Judgment" the following:

"Having heard the evidence of the claimants and that of the defence, and on the finding of facts and on the balance of probabilities, I am satisfied that the claimants have made out their respective cases against the defendants. I therefore made (sic) the award as in Appendix A accordingly (oral reasons given). Total amount awarded $115,080.30. Costs $300 to each of the claimants. Defendant to make payment within two weeks through court.

Below that, we have this endorsement:

"Certified true copy.

5. Mr. Sceats contended on behalf of the applicant that such inclusion in these two last pages of exhibit "JY-1" was tantamount to the lodging of a copy award or copies of awards with the Registrar. In essence, so counsel elaborated, the intention of the Legislature was to ensure the authenticity of document to be questioned and, if necessary, quashed. Such inclusion of the reference to the determination and award made by the Presiding Officer was, according to counsel, sufficient compliance with Order 53 rule 9(2).

6. It is plain, in my view, that the reference made in the last two pages of this exhibit to what has been entitled "Judgment" of the Presiding Officer is not the award or a copy award. This portion of the notes lacks, in particular, the precision for a formal award. It is also incomprehensive. It refers to "oral reasons given" which are not specified and cannot be ascertained from these notes of proceeding for the purposes of the intant application. These notes of proceedings record the making of "the award", including its terms, but the notes are not themselves the award.

7. I am driven to the conclusion that the brief note of "Judgment" is not an award nor a copy award. I need go no further. However, I would be inclined to hold that the reference in these two pages of the exhibit to Mr. Young's filed affirmation is no lodging of a copy award or copies of awards with the Registrar and is no certification as required by Order 53 rule 9(2). Failure has thus been established, and I have to turn to consider, as provided for by order 53 rule 9(2), whether the applicant has successfully accounted for his failure to my satisfaction.

8. Mr. Sceats submitted that paragraph 7 of Mr. Young's affirmation explained, by inference or implication, that the inclusion of the notes of proceedings had, in fact, led to the non-compliance of Order 53 rule 9(2). The requirement in Order 53 rule 9(2) is specific, and failure must be accounted for to the satisfaction of the judge. I cannot accept the suggested inference or implication from the statements contained in paragraph 7 of Mr. Young's said affirmation as, in the circumstances known, an acceptable explanation. As a matter of fact, I am not persuaded that such inference or implication may be so fairly drawn.

9. I notice that solicitor assisting counsel has throughout been present in court. In his usual candour, Mr. Sceats informed the court that he could take the matter no further.

10. In the circumstances, I feel constrained to rule that the applicant may not challenge the validity of the award given on the 17th May 1984 and served on the applicant, as I have been told by Mrs. Barnes, on the 24th May 1984. Subject to what counsel have to say on the effect of the failure to comply with Order 53 rule 9(2) on the part of presumably the solicitor assisting counsel, I propose to dismiss the application.

11. Mr. Sceats has nothing further to add. I dismiss the application with costs to the respondents legally represented.

(1) [1955] 1 W.L.R. 562