LAM PAK WOON AND OTHERS v. NEW ART INDUSTRIAL CO

IN THE SUPREME COURT OF HONG KONG

LABOUR TRIBUNAL APPEAL N0. 88/86

CLAIM NO. 2291/86

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J U D G M E N T

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1. The appellant was granted leave by a Deputy High Court Judge to appeal against an order of a Presiding Officer of the Labour Tribunal dismissing an application to set aside an award previously made in favour of the respondents.

2. It is not necessary for the disposal of this appeal to embark upon an analysis of the particulars of the respondents' claim or the defence disclosed in the Summary of Facts prepared by a Tribunal Officer on 23rd June 1986, Suffice it to say that it was plain before the hearing that the ultimate decision was to be one that would largely rest on findings of fact to be derived from the evidence of the parties.

3. On 4th July 1986 the parties attended at the place and time appointed for the hearing of the claim and were prepared to argue their respective cases. However, the Presiding Officer informed them that due to the number of cases to be heard that day the hearing would be deferred until 6th October.

4. On 6th October the respondents were present but there was no representation for the appellant. The Presiding Officer, who was not the same officer as the one who presided on 4th July, proceeded in the absence of the appellant, and, after hearing evidence from the respondents, made an award in their favour.

5. On 24th October the appellant appeared before the Presiding Officer who had,made the award and applied to have it set aside pursuant to section 21A of the Labour Tribunal Ordinance (Cap. 25) as having been given in his absence. The reason advanced for hot having attended at the hearing on 6th October was that although on 4th July the appellant's representative had heard the, Presiding Officer announce that the hearing would be deferred until October, he did hear what date had been mentioned. Moreover, he explained that he had not made any further enquiry from the Presiding Officer because, first, it was plain that the latter was in a hurry to dispose of the cases on the list and, secondly, he had said that the parties would be notified by letter of the hearing date.

6. The Presiding Officer refused to set,aside the award. The following is the relevant part of the reason he gave :

"should the defendant (appellant) be frank and apply on the ground that (its representative) was careless or did not hear clearly the hearing date, I would have allowed the application though defendant would be penalised in costs. But the allegation of the defendant was that he was expressly told by the Presiding Officer that a further notice would be sent to them notifying them of the hearing date. This is contrary to the record which indicated an announcement of the hearing date in open court. I accept the claimants' statement that no such thing was uttered by the Presiding Officer. As I find the defendant has not been frank with the court and tried improperly to put the blame on the Presiding Officer they might not be given leave to set aside the ex parte order made on 6th October 1986."

7. Miss Carlye Chu, who appears for the appellant on this appeal, submits that although section 21A clearly confers a discretion on a Presiding Officer in deciding whether to set aside an award, the Presiding Officer in this case had not exercised his discretion judicially in that he had not taken into account all relevant factors and had been influenced by an irrelevant consideration.

8. It is her contention that even if the appellant's representative had not been entirely frank in that he had sought to bolster his excuse by falsely claiming that the Presiding Officer had stated that the parties would be advised by letter of the hearing date, such conduct did not justify a refusal to set aside the award in the circumstances of this case. If the Presiding Officer had been prepared to set aside the award on the basis that the appellant's representative had been careless, the fact that the latter had sought to gild the lily should not have altered the situation.

9. She cited the well known case of Evans v Bartlam [1937] AC 473 in which Lord Atkin said at page 480 :

"Appellate jurisdiction is always statutory : there is in the statute no restriction upon the jurisdiction of the Court of Appeal : and while the appellate Court in the exercise of its appellate power is no doubt entirely justified in saying that normally it will not interfere with the exercise of the judge's discretion except on grounds of law, yet if it sees that on other grounds the decision will result in injustice being done it has both the power and the duty to remedy it."

10. While I accept that their lordships were there considering the discretionary power of a judge in relation to the setting aside of a judgment, what lord Atkin said is in my view, relevant to an application to set aside as award made by a Presiding Officer of the Labour Tribunal.

11. No doubt there are circumstances under which a Presiding Officer would be justified in refusing to set aside an award made in the absence of a defendant. An obvious example is where the defence disclosed by the defendant prior to the hearing conducted in his absence could not possibly amount to a defence in law and, at the hearing of the application to set aside, he is unable to raise any fresh material that would justify a setting aside of the award.

12. In my view, however, the paramount consideration must be to see that justice is done. In the present case it was clear first, that there was a factual conflict which, if resolved in the defendant's favour, would result in the plaintiffs' claim being dismissed, and secondly, that the defendant had at all times indicated an intention to defend the case, as evidenced by the earlier disclosure of his defence and his attendance on the day appointed for the original hearing, and thirdly, that the Presiding Officer had accepted that the defendant had failed to attend at the deferred hearing due to carelessness and nothing more.

13. There was no suggestion that the appellant had had any sinister or ulterior motive in failing to attend or that, if the award were set aside, the respondents would be likely to suffer any prejudice or inconvenience that could not be cured by an appropriate order for costs.

14. Indeed, in this court none of the respondents has been able to indicate how he might be prejudiced by an order setting the award aside other than that the final resolution of the dispute will be further delayed.

15. There are no witnesses who were called at the hearing on 24th October who for one reason or another would be unavailable at a fresh hearing, for the only witnesses at that earlier hearing were the respondents themselves.

16. Whilst I accept that the events that have occurred have caused considerable irritation to the respondents, and that the present problem would not have arisen but for the carelessness of the appellant's representative is not taking all reasonable steps both to acquaint himself of the deferred hearing date and to ensure that the appellant attended thereon, I am satisfied that the Presiding Officer was wrong to refuse to set the award aside simply because the appellant's representative had not been completely frank at the hearing of the application to set aside the award. In my view he did not properly exercise his discretion.

17. I therefore allow the appeal. The award is set aside and the case is remitted to the Labour Tribunal for a re hearing.