SINGH BALJIT v. FORWARD & CO., LAWYERS

HCA 1097/2022

[2023] HKCFI 188

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1097 OF 2022

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D E C I S I O N

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A. Introduction

1.  This is an application to strike out the amended statement of claim on the principal ground of res judicata. 

2.  The sole principal of the Defendant law firm was Ms Viola Forward, also known as Ms Ho.  The Plaintiff was employed by the Defendant law firm for 2 periods.  The second period covered 1 March 2019 to 16 October 2019, when the Plaintiff was dismissed by the Defendant without any reasons.  The Plaintiff instituted HCA 552 of 2020 (“2020 Action”)  on 8 May 2020 against the Defendant for various reliefs.  The Defendant asserted that the claim was an employment claim and hence within the exclusive jurisdiction of the Labour Tribunal.  The Plaintiff claimed that it was a mixed claim of employment law and tort law, with multi-issues that were not within the jurisdiction of the Labour Tribunal. 

3.  Upon the application of the Defendant, the claim was struck out and the 2020 Action was dismissed on the ground that the claim was within the exclusive jurisdiction of the Labour Tribunal and was not a mixed claim: [2022] HKCFI 153, §§15, 28, 18-27, Au-Yeung J (“CFI’s Decision”).  The Plaintiff’s appeal to the Court of Appeal was dismissed: [2022] HKCA 1209 (“CA’s Judgment”).

4.  A day after the CA’s Judgment, the Plaintiff instituted the present action, focusing on his second period of employment, which was terminated without notice.  He also pleaded an array of causes of action with some “new reliefs”. 

5.  The Defendant applied for striking out under Order 18, rule 19(1), RHC, relying on the limbs that (a)  the statement of claim discloses no reasonable cause of action, (b)  it is scandalous, frivolous or vexatious, and/or (c)  an abuse of the process of the Court.  The primary basis is that the Plaintiff seeks to relitigate matters decided against him. 

6.  The Plaintiff opposes the application and, as in the 2020 Action, maintains that his claim is one of mixed claims of employment law, tort and breaches of statutory duties, which cannot be tried by the Labour Tribunal.

7.  I shall analyze the Defendant’s application in the following order: abuse of process, lack of reasonable cause of action and its being scandalous, frivolous or vexatious.

B.  Legal principles on striking out

8.  Strike-out under Order 18, rule 19(1), RHC, is only used for plain and obvious cases.  Disputed facts are taken in favour of the party whose pleading is the subject matter of the striking out application.  Lack of jurisdiction can be a ground for striking out.  It may be an abuse of process to relitigate matters which could or should have been raised in earlier proceedings, vexing the other party by a subsequent set of proceedings: Ko Hon Yue v Chiu Pik Yuk (2012)  15 HKCFAR 72, §83, Chief Justice Ma, applying Johnson v Gorewood [2002] 2 AC 1 (PC). 

9.  The Court has a general power to expunge scandalous matters, ie those that are degrading, indecent and offensive charges, which are irrelevant or for the sole purpose of abusing or prejudicing the other party.  Irrelevant matters would be struck out even if not scandalous: Hong Kong Civil Procedure 2023, Vol 1, §18/19/6.

C.  Legal principles on jurisdiction of the Labour Tribunal

10.  Before the Court of Appeal, the Plaintiff did not in substance dispute the principles that I applied in the 2020 Action, as set out in Woo Kwok Ping v The Incorporated Management Committee of Tsuen Wan Trade Association Primary School [2020] 1 HKLRD 717, §§17-23, on how to deal with a challenge to an action on the ground that the claims therein fell within the exclusive jurisdiction of the Tribunal (CA’s Judgment, §18).

11.  In essence, the Court should look at both the pleaded causes of action and reliefs sought to determine the jurisdiction issue.  Mixed claims founded both in employment contracts and torts are excluded from the Labour Tribunal.  Similarly, a mixed claim for monetary and non-monetary reliefs, even though based on breach of contract or of the Employment Ordinance, fall outside the jurisdiction of the Labour Tribunal. 

D.  Abuse of process

12.  The statement of claim in the 2020 Action (“2020 SOC”)  was struck out on the following grounds as set out in the CFI Decision:

(1)  The substance of the claim was premised on termination of employment, which was within the exclusive jurisdiction of the Labour Tribunal even if some damages were unliquidated (§15);

(2)  The Plaintiff had not pleaded facts to support any tort claims and the 2020 SOC did not disclose reasonable causes of action in tort (§§16-27); and

(3)  The prayers for relief showed a pure monetary claim without non-monetary reliefs (§18). 

13.  The Court of Appeal upheld the decision to strike out.  The Court of Appeal commented that the Plaintiff had raised other unmeritorious claims but his real claim was a sum of money which was within the jurisdiction of the Labour Tribunal (CA’s Judgment, §§23-31).  The 2020 SOC had either failed to mention the cause or failed to plead material facts or was window dressing. 

14.  The Defendant has, in the affirmation of Ms Viola Forward, set out in a table the similarities and differences between the 2020 SOC and reply in the 2020 Action (“2020 Reply”), and the amended statement of claim (“ASOC”)  in the present action. According to Mr Poon, counsel for the Defendant, the only new allegations are in §§47-54 of the ASOC which plead fraud, civil conspiracy and criminal conspiracy (“New Allegations”).

15.  The Plaintiff makes 3 points in answer to this Court’s requisitions:

(1)  He admits that the New Allegations form the differences when one just compares the 2 sets of statement of claim.  However, when one takes into account also the 2020 Reply, there are no differences; 

(2)  Both actions concern facts arising out of his second term of employment; and

(3)  He claims that it was the Presiding Officer of the Labour Tribunal who told him in open court to “re-issue the Writ of Summons” and amend the statement of claim. 

16.  With regard to points (1)  and (2), they are the clearest admissions by the Plaintiff that this action is an abuse of process.  It is res judicata in the narrow sense in that the 2 actions involve identical parties, and are based on the same factual materials arising out of the second term of employment.

17.  With regard to point (3), I have serious doubt that a professionally qualified judicial officer would have made the suggestion in the light of the CFI’s Decision and the CA’s Judgment.  Anyway, the Plaintiff, confident that the suggestion was recorded, has not produced the transcript to prove what the Presiding Officer said.  Even if the Presiding Officer had made the suggestion, it would not have prevented the present action from being an abuse of process for the reason given in the preceding paragraph.

18.  The reasons given in Section D are sufficient to strike out the claim and dismiss the action.

E.  Lack of reasonable cause of action

19.  I have considered the New Allegations and some new prayers for relief in the ASOC. 

20.  The New Allegations are summarized as follows:

(1)  Under the title of fraud, it is alleged that the managing director, Mr Bernard Elphick, of the Defendant’s Sydney law firm, in association with the Defendant and partner of Ms Ho “had been confirmed a fraud” for claiming to be a Barrister by the General Council of the Bar (England and Wales)  on 22 June 2021 (ASOC, §§47-48);

(2)  Under the title of civil conspiracy, it is alleged that Ms Ho and her staff Ms Lee made agreements to conspire with intention of harming the Plaintiff “that evidently resulted in damages, namely, the Plaintiff to pay tax, career prospect and well being, more, employed by the Plaintiff by way of fraudulent misrepresentation to further their criminal activities under the veil of the Defendant and to evidently subvert the Hong Kong Statutory Bodies and the Hong Kong Government Departments with high probability of also undermining the Australian Taxation Offices and the Law Society of New South Wales.” (ASOC, §49); and

(3)  Under the title of criminal conspiracy, it is alleged that there were arrangements between Ms Ho, Mr Bernard Elphick and Ms Lee to achieve an illegal objective “by having noticeable knowledge of the conspiracy by participating in the conspiracy in many ways making overt acts with criminal intents under the veil of the Defendant for the sole aspiration in furtherance of their conspiracy to defraud, namely, the IRD, Department of Justice, MPFSA, Law Society of Hong Kong with high probability of also undermining the Australian Taxation Office and Law Society of New South Wales”.  These acts violated s.159(A)  of the Crimes Ordinance.  Ms Lee and Ms Ho’s acts were also in violation of s.16(A)  of the Theft Ordinance.  The Defendant also used unlawful means to interfere with the Hong Kong Government Departments and Statutory Bodies with an intention to cause harm to the Plaintiff.  Ms Ho also conspired with a previous client “to subvert the Department of Justice to circumvent Legal Aid fees of more than HK$1 million.”  (ASOC, §§50-54)

21.  New Allegation (1)  has nothing to do with the Plaintiff.

22.  New Allegation (2)  is incomprehensible especially when it refers to a conspiracy “under the veil of the Plaintiff”.  What the conspiracy set out to do, what fraudulent unrepresentation was made and what criminal activities were committed were wholly unpleaded.  That aside, there is no allegation that the Plaintiff was actually harmed and had suffered loss from the civil conspiracy. For the harm on government departments, statutory bodies and foreign offices, the Plaintiff has no personal right of action.

23.  New Allegation (3)  is similarly incomprehensible especially when it refers to a conspiracy “under the veil of the Plaintiff”.  The alleged conspiracy was to defraud authorities.  The causation for the harm done to the Plaintiff was not pleaded.  In any case, sanctions for criminal conduct are not to be imposed by way of civil action. 

24.  The rest of the ASOC other than the New Allegations have been dealt with in the CFI’s Decision and CA’s Judgment.  I shall not repeat the conclusions here.    

25.  In the ASOC, the Plaintiff purports to address some causes of action which the CFI’s Decision has held not to be reasonable causes, i.e. as harassment, negligence and breach of trust and confidence. 

26.  Firstly, in respect of harassment (ASOC, §§73-94), the Plaintiff’s basis was that the Defendant asked him to return his salary to the Defendant and he suffered harm.  There is still no plea in the ASOC as to how a reasonable person would regard the Defendant’s conduct as amounting to harassment.  The cause of action is bound to fail.

27.  Secondly, in respect of negligence (ASOC, §§67-69), the Plaintiff failed to plead a duty of care in the ASOC and the Court of Appeal’s description of the allegation of negligence as mere “window dressing” (CA’s Judgment, §13)  holds good.

28.  Thirdly, breach of trust and confidence (ASOC, §§76-92)  is not a viable cause of action in this case.  It cannot be used to form a platform to allow an employee to recover damages for loss arising from the manner of his dismissal. The obligation of trust and confidence is concerned with preserving the continuing relationship which should subsist between employer and employee and thus it is not appropriate for use in connection with the way that the relationship is terminated.  It would be an improper exercise of the judicial function to develop the common law to permit such claims to be made in the light of the evident intention of the legislature that they should be heard by the Labour Tribunal and the remedy should be limited in application and extent as provided for in the Employment Ordinance. See CA’s Judgment, §27; Tadjudin Sunny v Bank of America, National Association, CACV 12/2015, 20 May 2016. 

29.  As for the prayers for relief, there are new items like “non-economic damages”, “non-pecuniary loss”, “equitable remedy or equitable relief” and declaration, but what they really are have not be pleaded or explained by the Plaintiff. 

30.  Further, the Plaintiff has not explained why (i)  the New Allegations, (ii)  the further facts for negligence, breach of trust and confidence, and harassment and (iii)  the new prayers for relief could not have been made or sought in the 2020 Action.  The broader sense res judicata applies in this case. 

31.  In the premises, the ASOC should be struck out on the ground of lack of reasonable causes of action.

F.  Scandalous, frivolous or vexatious

32.  The Plaintiff has pleaded other persons such as Mr Bernard Elphick (ASOC, §§47-48), breach of foreign law (ASOC, §§70-72), breaches of statutory duties and breaches of professional conduct rules (§§55-66, 73-75).  Those pleas are wholly irrelevant to his claim in wrongful dismissal.  Those pleas are there to attack the integrity of the Defendant and fall within the description of being scandalous, frivolous or vexatious.

G.  Conclusion and costs

33.  For the reasons given, I find that it is an abuse of process for the Plaintiff to re-litigate the 2020 Action that has been dismissed.  The claim arising from termination of employment should be dealt with by the Labour Tribunal. The other causes of action in the ASOC do not disclose reasonable causes of action or are scandalous, frivolous or vexatious.  The ASOC is thus struck out and the claim is dismissed.

34.  This is a thoroughly bad attempt to re-litigate.  On a nisi basis, I order the Plaintiff to bear costs on indemnity basis.  I summarily assess such costs (reducing only the number of hours for hearing)  and allow the amount of $155,080, payable forthwith.

35.  I thank Mr Poon for his assistance.