HOOI SIEW FONG, RACHEL v. CATHAY PACIFIC AIRWAYS LTD AND ANOTHER

HCA 2186/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2186 OF 2009

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BETWEEN

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D E C I S I O N

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1.  The defendants have an application in HCA 2186/2009 (“the first Action”) for alternative remedies. The first remedy is to strike out the statement of claim and to dismiss the action. The grounds are under Order 18, rule 19 of the Rules of the High Court. The alternative remedy is for determination under Order 14A of the Rules of the High Court of the question whether as a matter of law the plaintiff has any basis for bringing this action against the defendants.

2.  The plaintiff also has an application to consolidate this action with HCA 2309/2009 (“the Second Action”).  The plaintiff began that claim in the Labour Tribunal which was eventually transferred to this court and became the Second Action. 

3.  The plaintiff began her employment with the 1st defendant of this action on 7 November 1983.  Her employment came to an end on 6 April 2006 upon her resignation.  She said she was constructively dismissed.  Her complaint was the 1st defendant’s use of some spray in the cabins of aircrafts in which she worked.  Her claim for damages for constructively dismissal in the Labour Tribunal was transferred to this court and became the Second Action.

4.  She also commenced the First Action in this court without going through the Labour Tribunal.  She is claiming in the First Action for loss of salary and loss of retirement payment.  The basis of the claims is that but for the constructive dismissal or what she called “forced early retirement”, she would have been able to work until 4 July 2015 which is the mandatory retirement day for her.

5.  I have explained to her that her claim for loss of salary in the First Action should be made in the Second Action as damages for constructive dismissal.  The defendant in the Second Action is the 1st defendant in the First Action who is her former employer.  Her claim for loss of retirement payment should likewise be made against the alleged wrongdoer, namely the defendant in the Second Action.  There is no basis to make the claim for loss of retirement payment against the 2nd defendant in the First Action who is alleged to be the trustee managing the retirement funds.  The trustee has nothing to do with her constructive dismissal or early retirement. 

6.  When I say that she should pursue the claim for loss of salary as well as loss of retirement payments in the Second Action and not in the First Action, I am not in any event saying that she has a good claim against the employer for these payments.  I am merely saying that if she should make these claims, she should make them in the Second Action against the defendant there and not against the defendants in the First Action.  The reason being that the claim for loss of salary in the First Action is duplicating with the claim for damages for constructive dismissal in the Second Action.  The claim for loss of retirement payment in the First Action is also misplaced as the 2nd defendant has nothing to do with her early retirement or constructive dismissal. 

7.  After my explanation of the reasons as per the above, the plaintiff accepted that her claims in the First Action should be dismissed.

8.  Now I come to the question of costs.  The plaintiff claimed against the 2nd defendant in the First Action because a representative of the 1st defendant suggested at the Labour Tribunal that her claim for loss of retirement payment should be addressed to the trustee of the retirement fund.  I therefore think that the costs of the 2nd defendant in this application should be borne by the 1st defendant.

9.  Counsel for the defendants submitted that the 2nd defendant has been wrongly sued because it was not the trustee managing the trust funds at the material time and this has been clarified and corrected by an affidavit of a solicitor of the defendants filed on 25 January 2010.  Therefore, counsel submitted that from 25 January 2010 onwards, the costs of the 2nd defendant should be borne by the plaintiff.  I do not agree.  Although the plaintiff did not accept the correction, I do not think that that would have contributed to a heavier burden for the 1st defendant insofar as the costs of the trustee is concerned.  Even if the plaintiff should have taken the advice and therefore dropped the claim against the 2nd defendant, she would still have joined the true trustee as the 2nd defendant and that would have meant the incurring of the same or more costs which would also be laid at the doorsteps of the 1st defendant.  The reason being that the 1st defendant, having made a wrong suggestion that the plaintiff should sue the trustee, did not at any time correct itself by saying that the alleged wrongdoer, namely the 1st defendant itself, should be the target of the claim for loss of retirement payment.  The 1st defendant’s error at the Labour Tribunal was perpetrated until today.  I therefore think that it is on the whole fair and right that I should order the 1st defendant to bear the 2nd defendant’s costs of this application and I certify it fit for counsel.  That is for the costs of the 2nd defendant.

10.  In relation to the costs of the 1st defendant, the usual order would be for the plaintiff to bear these costs.  But I also note that on 30 October 2009 at the Labour Tribunal, when the plaintiff suggested that her claim at the Tribunal (which became the Second Action) should be transferred to this court and she had also presented to the defendant and the presiding officer her statement of claim in the First Action, a representative of the 1st defendant said that the Second Action at the Tribunal should be transferred to this court for consolidation with the First Action.  That no doubt contributed to the taking of both actions by the plaintiff and her taking out of the summons for consolidation.  I think this erroneous move of pursuing both actions in this court and also to attempt to have them consolidated have been somehow partly induced by the 1st defendant.  I therefore think that it is fair that I should only order the plaintiff to bear half of the costs of the 1st defendant and also to make no order as to costs for the summons for consolidation.  The summons for consolidation is of cause dismissed.

(Discussion re costs)

11.  The plaintiff asked me to revise my costs orders.  I do not think I should.  I have already ordered the 1st defendant to pay the costs of the 2nd defendant.  So whatever wrong the 1st defendant might have done in relation to the plaintiff’s claim against the 2nd defendant, the plaintiff is not being required to pay any of the costs of the 2nd defendant.

12.  Regarding the plaintiff’s claim against the 1st defendant, the 1st defendant’s solicitors have on 30 November 2009 written a letter in clear terms suggesting to the plaintiff that she should not pursue the duplicated claim for loss of salary against the 1st defendant in both actions in this court.  The plaintiff did not take heed of that.  The fact that the 1st defendant might have made some errors in relation to the plaintiff’s claim against the 2nd defendant cannot affect the 1st defendant’s position in the claim against it in the First Action.  I think it is fair and right that I have ordered the plaintiff to bear half of the costs of the 1st defendant for the striking out application.

13.  On the amount of such costs to be paid by the plaintiff, I have applied gross assessment and come to the figure of HK$42,300 and I order that it be paid forthwith.