|
HCA009553/1994
1994 No. A 9553
IN THE SUPREME COURT OF HONG KONG
HIGH COURT
(Transferred from the Labour Tribunal Claim No. E621/94)
_____________
|
ESMAN, SAMSON N. |
1st Plaintiff
(1st Claimant) |
|
|
|
|
ABELLA, DANIE P. |
2nd Plaintiff
(2nd Claimant) |
|
|
|
|
AND |
|
|
|
|
|
ACMDC VENTURES INCORPORATED |
Defendant
(Defendant) |
_______________
1995 No. A 363
IN THE SUPREME COURT OF HONG KONG
HIGH COURT
(Transferred from the Labour Tribunal
Claim Nos. E3705/94; E3736/94; E3750/94; E3772/94)
_____________
| BETWEEN |
|
|
|
LABANDERO JR. ROBERTO B. |
1st Plaintiff
(1st Claimant) |
|
SALGADO, ALBINO BOBBY, C. |
2nd Plaintiff
(2nd Claimant) |
|
MALAQUE FERNANDO B. |
3rd Plaintiff
(3rd Claimant) |
|
BACLAAN, WILFREDO B. |
4th Plaintiff
(4th Claimant) |
|
GALE, RODOLFO L. |
5th Plaintiff
(5th Claimant) |
|
ANTIMARO, FELIX D. |
6th Plaintiff
(6th Claimant) |
|
CESA GERONIMO C. |
7th Plaintiff
(7th Claimant) |
|
ALQUEZA HERACLES T. |
8th Plaintiff
(8th Claimant) |
|
ARSOLA MARGARITO A. |
9th Plaintiff
(9th Claimant) |
|
UBOD, JOSE BERPELIE A. |
10th Plaintiff
(10th Claimant) |
|
BAES, MABINI B. |
11th Plaintiff
(11th Claimant) |
|
CAMPO, MANUEL M. |
12th Plaintiff
(12th Claimant) |
|
PEPIYO, ESMERALDO C. |
13th Plaintiff
(13th Claimant) |
|
SAIYOCA, CONRADO P. |
14th Plaintiff
(14th Claimant) |
|
LAGUNA, HERMES Y. |
16th Plaintiff
(16th Claimant) |
|
|
|
|
AND |
|
|
|
|
|
ACMDC VENTURES INCORPORATED |
Defendant |
_____________
Coram : Deputy Judge Aiken, Q.C. in Court
Date of Hearing : 15 July 1996
Date of Handing Down of Order : 29 July 1996
__________
O R D E R
__________
1. Two High Court Actions are before me : No. A 9553 of 1994; No. A 363 of 1995.
2. Early today I gave judgment in terms of Consent Summonses which disposed of all issues between the Defendant and the 2nd Plaintiff in A 9553 of 1994 and between the Defendant and the 1st to 6th, the 8th and 9th and the 11th the 16th Plaintiffs in A 363 of 1995.
3. Mr. Mok appears for all the remaining Plaintiffs in both actions and Mr. Scott, Q.C. appears for the Defendant in both actions.
CHRONOLOGY
4. The recent history in both actions is :
1996
| 11th March |
Both actions were set down for trial commencing on the 1st July 1996 with 4 weeks set aside. |
| 20th May |
Factual witness statements were exchanged between the parties. The Plaintiffs' witnesses questioned, apparently for the first time, the authenticity of certain relevant documents. |
| 4th June |
The Defendant applied to Mr. Justice Jerome Chan to adjourn both actions. |
| 25th June |
At the Summons for directions Mr. Justice Jerome Chan ordered that :
"The preliminary issue of whether the letter of Consent, Special Power of Attorney and other related documents are relevant and enforceable to be decided by the trial Judge on the first day of trial and parties are to agree on the issue and all necessary factual background for the purpose of such an issue as soon as practicable and in any event before trial, failing agreement, there by general liberty to apply".
5. The Learned Judge also ordered that the Defendant need not bring witness from the Philippines for the trial in July.
|
| 3rd July |
The Defendant sent the Plaintiffs a proposed wording for the preliminary issue and a proposed set of assumed facts.
6. The Plaintiffs did not reply.
|
| 11th July |
The Defendant informed the Plaintiffs and the Court that it wished to apply to vary the terms of Mr. Justice Jerome Chan's order and in effect to adjourn the trial. The main reasons were :
(1) the parties had not agreed the terms of the preliminary issue;
(2) the parties had not agreed the necessary factual background for any preliminary issue;
(3) it was not possible to select a preliminary issue which fully reflected the pleaded issues;
(4) certain witnesses were (consequent upon the Order of 25th of June) still in the Philippines.
|
ISSUES
7. The issues I have to decide are (1) whether to try and identify a suitable preliminary issue to occupy the days presently set aside; or (2) whether to adjourn the trial (for the reasons advanced by the Defendant).
8. The Plaintiffs urged that I should occupy part of the time with a preliminary issue. Today those representing the remaining Plaintiffs handled up a draft proposed preliminary issue (in a document titled "Comments on the Defendant's preliminary issues") and also a draft "Factual Background".
SHOULD THERE BE A PRELIMINARY ISSUE
9. Generally a preliminary issue is taken with the consent of the parties and in terms agreed by them. Often the issue is one of law. It is undesirable to take issues which require a detailed examination of the facts : see the Supreme Court Practice 1995 Vol. Notes to Order 33 rule 3/1.
10. The wide extent of the disagreement between the parties over the terms of an appropriate issue is shown by comparing the proposals each have suggested. The Defendant's proposed issue concerns deductions from the Plaintiffs' wages in general. The Plaintiffs' proposed issue takes one small aspect of the deductions referred to as "the 10% deduction". There is also disagreement between the parties about the necessary factual background. This is apparent from comparing the Defendant's "assumptions" with the Plaintiffs' "factual background".
11. The intention of Mr. Justice Jerome Chan's order (25th of June) is that the parties agree both the terms of any preliminary issue and the factual background necessary to dispose of it.
12. It is clear that the parties are a long way from any such agreement. I do not consider it desirable for the Court to impose a preliminary issue on the parties. Given my relatively limited knowledge of the facts I consider it unwise to try and define an issue which the parties have failed to agree. Obviously it would be easy enough to draft an issue. But I doubt whether the answer to it would be of practical benefit. The precise nature and terms of the Plaintiffs' employment contracts are very much in dispute. Apparently there are three versions of the original written agreement. It is argued that in addition there were oral terms and further contractual documents (such as the Special Power of Attorney). The nature and the composition of the contract will depend on what facts are found from the oral evidence. I therefore consider it unhelpful to answer a preliminary issue which may become redundant if the evidence shows that the contract was different from the assumptions on which such issue was based. The risk of answering an issue which may turn out to be "academic" was illustrated when I asked which law (Hong Kong or Philippines) governed the contract(s). I received no clear answer and certainty not one which was agreed by all parties. If the governing law is unclear it is not possible to construe the contract(s). As this difficulty became apparent Counsel for the Plaintiffs urged me to decide which law governed. This was not a practical suggestion. The Plaintiffs have no expert on Philippines law to answer the Defendant's expert.
13. I am satisfied that it would not be of practical benefit to the parties for the Court to impose a preliminary issue in the absence of their agreement. I am satisfied that on the exiting pleadings and evidence it is not possible to isolate an issue which will shorten the trial.
(2) SHOULD THE TRIAL BE ADJOURNED
14. Mr. Justice Jerome Chan's order (25th of June 1996) relieved the Defendant of the need to bring their witnesses to Court for trial in July. The trial of disputed factual issues cannot proceed without these witnesses. Having already decided that it is not possible to define a useful preliminary issue it must therefore follow that the trial has to be adjourned.
15. I order that the trial be adjourned to a date to be fixed in consultation with Counsels' diaries. I ask the Listing Judge to provide the first available date.
Costs
16. I do not consider either party caused the adjournment today. This arose principally from the failure of the parties to agree a suitable preliminary issue and their failure to agree the necessary factual background.
17. Further I am satisfied that a considerable part of the costs incurred today are attributable to the settlement reached between the Defendant and 15 of the 18 Plaintiffs in both actions. These costs have already been taken care of in the consent summons which I ordered earlier today.
18. In the circumstances I make an order nisi that the remaining costs of and related to today's attendance be costs in the cause with liberty to all parties to apply.
(Nigel Aiken, Q.C.)
Deputy Judge of the High Court
Representation:
Mr. Johnny S.C. Mok, instructed by Messrs. Boase Cohen & Collins for the Plaintiff.
Mr. John Scott, Q.C., instructed by Messrs. Masons for the Defendant
|