CHUNG MAN CHIU AND ANOTHER v. AD-LINK COMMUNICATIONS LTD.

HCLA 58/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 58 OF 2002

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO. LBTC 2113 OF 2002)

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D E C I S I O N

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1. In my judgment handed down on 5 December 2002, I allowed the appeal and remitted the case back to the Tribunal for retrial. I also ordered the Claimants to pay the costs of the appeal to the Defendant. The Claimants did not wish to challenge my decision to remit the case back to the Tribunal. However, they wish to contend that my order as to costs was wrong and by a summons of 9 January 2003, they seek leave to appeal against that part of my decision.

2. Although the Claimants were legally represented at the appeal, by the time they made this application for leave to appeal, they became unrepresented. Mr Chung argued the application before me on behalf of both Claimants at the hearing before me on 27 January 2003.

3. Before I deal with the substantive merit of the application, I need to consider the question whether leave could be granted by me. This depends on whether the application falls within the scope of Section 35A of Labour Tribunal Ordinance. More specifically, the question is whether Section 14(3)(e) of the High Court Ordinance excludes the operation of Section 35A in respect of the decision of the Court of First Instance on costs in an appeal from the Labour Tribunal.

4. Section 35A should be read together with Section 35(3) of the Labour Tribunal Ordinance. The effect of those sections is that in respect of a decision of the Court of First Instance on an appeal from the Labour Tribunal, only the Court of Appeal can grant leave to appeal and that leave could only be granted in respect of a question of law of general public importance. Subject to that, Section 35(3) provided that the decision of the Court of First Instance shall be final.

5. On the other hand, Section 14(3)(e) of the High Court Ordinance stipulated that no appeal shall lie without the leave of the court in question or from the Court of Appeal from an order of this court relating only to costs which are by law left to the discretion of this court.

6. Section 14(3)(c) of the High Court Ordinance may also be relevant. Insofar as Sections 35(3) and 35A of the Labour Tribunal Ordinance were held to be governing the situation, the decision of this court is final subject only to leave being obtained from the Court of Appeal.

7. I am not aware of any authority on this point. The provisions in the Labour Tribunal Ordinance strive to achieve finality in legal proceedings and therefore a narrow ambit for appeal is laid down. Equally, this is the purpose of Section 14(3)(e) of the High Court Ordinance in respect of costs order generally. But the methods adopted to limit appeals are different in the two ordinances. This is probably because the rationale for limiting the permissible scope of appeal under the Labour Tribunal Ordinance and that for appeal against order as to costs generally are different.

8. Labour Tribunal was set up by the legislature to deal with employment related disputes and the aim was to have such disputes resolved promptly and cheaply by, inter alia, providing for finality on certain decisions. The same rationale applies equally to decisions made on appeal from the Labour Tribunal, hence the provision in Section 35A. Likewise, I think the same rationale is applicable to order for costs made in respect of Labour Tribunal appeals.

9. Hence, my view is that the matter should be governed by Section 35A and the Claimants should apply to the Court of Appeal for leave to appeal, albeit in respect of a decision on costs only. By reason of that, the effect of Section 14(3)(c) of the High Court Ordinance is that there cannot be any appeal unless leave is granted under Section 35A. When the Court of Appeal considers the application for leave, it would no doubt also consider whether it is appropriate to grant leave bearing in mind that this is an appeal against costs only. If it is held that Section 14(3)(e) imposes a further requirement in addition to Section 35A, the Court of Appeal can also grant leave under that section.

10. Having said that, I wish to add that I am sympathetic to the Claimants. I was told at the hearing of 27 January 2003 that the bill prepared by the Defendant's solicitors showed that costs of the appeal run up to about $200,000. Although this is subject to taxation, I could understand the grievance of the Claimants that they are saddled with such a liability through no fault on their parts.

11. As I have told the 1st Claimant at the hearing, even if I dismiss their applications, they could still apply to the Court of Appeal for leave to appeal out of time. This is what they should do if they wish to take the matter further.