ELLEN C. ALAGAHIT v. WONG FUNG LAN

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

Labour Tribunal Appeal No.178 of 1995

-------------------

------------------

-----------------------

J U D G M E N T

-----------------------

1. The short point in this appeal is whether the Presiding Officer of the Labour Tribunal has jurisdiction to order a payment to be made by a claimant for security for costs.

The claim

2. The Claimant (Appellant) arrived in Hong Kong on 29 August 1994 to take up employment as a domestic helper with the Respondent. On 6 March 1995, the Claimant's employment was terminated on the basis that her work performance was unsatisfactory and that she had taken some of the Respondent's belongings. A conciliation meeting followed in April 1995 at which the allegations of unsatisfactory work performance were withdrawn.

3. As a result of the termination, the Claimant has made various claims. The matter came before the learned Presiding Officer on 18 October 1995. He made an Order that should the Claimant wish to proceed with her claim, then it was necessary for her to provide $3,000 as security for costs.

Jurisdiction

4. The submissions of counsel for the Claimant may be summarised as follows : First, there is no express provision in the Ordinance enabling the Presiding Officer to make an order for security for costs. Second, Order 23 of the Rules of the Supreme Court does not apply to proceedings of the Labour Tribunal. Third, had it been applicable, the circumstances of this case do not pass the threshold test so as to trigger the exercise of the discretion. Fourth, Order 23 is a complete and exhaustive code there is no scope for any inherent

jurisdiction for the Court to order security against an impoverished litigant : see C. T. Bowring (Insurance) Ltd. v. Corsa Partners Ltd. [1994] 2 Ll.L.R. 567 at 580. Fifth, in any event, s.46 of Cap.25 does not give the Presiding Officer an unfettered discretion. Were it wide enough to encompass the making of an order for security for costs, by implication, such an order should follow the normal rules.

5. Contrary to the submissions of counsel for the Claimant, the Labour Tribunal Ordinance, Cap.25 does contain a provision relating to the Court's power to order security. Section 30 provides as follows :

"The Tribunal may, if it is of the opinion that an adjournment of the hearing of a claim may result in prejudice to a party because of the disposal or loss of control of assets by a defendant, grant an adjournment only on payment into the Tribunal of such sum of money or the giving of such other security for the payment of the amount of any award as the Tribunal may think sufficient."

Indeed in making the Order, the learned Presiding Officer referred to his powers under s.30 of the Ordinance. This appears from his "Reasons for Decision" dated 8 January 1996. The scope and extent of s.30 has recently been considered by P. Chan J. in Tang Hung Sang and Others v. The Hong Kong and Yaumatei Ferry Company Limited, LTA No.189 of 1995. The learned Judge held (and I respectfully agree) that the power is only exercisable on the following conditions :

1. The Presiding Officer grants an adjournment;

2. He is of the opinion that the adjournment may result in prejudice to a party;

3. The prejudice is due to the disposal or loss of control of assets by the defendant.

6. On the facts, whilst the first condition was satisfied in that the learned Presiding Officer did grant an adjournment, the other two conditions were not. There was no "disposal or loss of control of assets by the Defendant". That being the case, no prejudice could have flowed from such disposal, etc. It also follows that the "party" who may suffer the prejudice as a result of the adjournment must, in the context of s.30, be the Claimant.

7. It is clear from a reading of s.30 that it is intended to give some protection to the Claimant in the event of a disposal of assets by the Defendant that may result in an inability to pay any judgment debt that may be awarded against the Defendant. As the conditions for the exercise of the power under s.30 to order security were not satisfied, the power did not become exercisable and the purported exercise of the power by the Presiding Officer was bad. For this reason, the appeal must be allowed.

8. I would add that whilst the power in s.30 is a power to order security, it is sufficiently wide to extend to and encompass an order for security for costs. Nonetheless, the s.30 power is very different from what is traditionally understood as a power to order security for costs since the whole tenor of s.30 is to preserve assets so that a successful claimant will not have to face an unsatisfied judgment debt.

9. I will also deal briefly with two points that arise from the Claimant's submissions. The first is that I agree that Order 23 of the Rules of the Supreme Court (which sets out the procedure relevant to the granting of an order for security for costs) has no application to Labour Tribunal proceedings. Order 23 does not apply to other courts or tribunals such as the Labour Tribunal in the absence of an express provision extending its application. See, for example, Rule 9 of and the Schedule to the District Court Civil Procedure (General) Rules, Cap.336 which expressly made, inter alia, Order 23 applicable to proceedings in the District Court.

10. The second is whether there is any residual power in the Presiding Officer to order security for costs. Section 46 of the Labour Tribunal Ordinance, Cap.25 provides as follows :

"In any matter of procedure for which no provision is made by this Ordinance or by rules made pursuant to s.45, the procedure applicable shall be such as the Presiding Officer may determine."

In view of s.30 which expressly deals with provision of security which must encompass, where appropriate, security for costs, there is no scope for any argument that s.46 gives the Presiding Officer a free hand to order security for costs on the ground that it is a procedural matter.

11. For these reasons, the appeal is allowed. Costs to be in the cause.