HELEN TSANG v. CATHAY PACIFIC AIRWAYS LTD.

CACV 43/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 43 OF 2001

(ON APPEAL FROM DCEO NO. 5 OF 2000)

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J U D G M E N T

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Introduction

1. Helen Tsang was employed by Cathay Pacific Airways Ltd. ("Cathay"). In 1979, she became a cabin attendant. At that time, the retiring age for female cabin attendants was 40, whereas for male cabin attendants it was 55. However, when she reached the age of 40 in 1992, Cathay did not require her to retire. Instead, she continued to be employed by Cathay under a series of short-term contracts. She thereby benefited from a subsequent change of policy in 1993 which permitted female staff "already on extension" to be offered further extensions until they reached the age of 45. When she reached the age of 45 in 1997, her final contract was not renewed.

2. In due course, Ms Tsang complained to the Equal Opportunities Commission ("the Commission") that Cathay had acted unlawfully under the Sex Discrimination Ordinance (Cap. 480) ("the Ordinance") by implementing and applying to her a discriminatory retirement policy by compelling female cabin attendants who had been in post prior to the 1993 change in policy to retire when they reached the age of 45, while permitting male cabin attendants who had then been in post to continue work until they reached the age of 55. Before the Commission had completed its investigation into her complaint, Ms Tsang issued proceedings in the District Court. The Commission thereupon suspended its investigation and declined to grant her legal assistance.

3. The action was eventually tried by Judge Saunders. He upheld Ms Tsang's claim and granted her declaratory relief in the terms she had sought. Cathay is now appealing to the Court of Appeal, and the current application is an application by the Commission under Ord. 15 r. 6(2)(b) of the Rules of the High Court to be added as a party to the appeal. Alternatively, the Commission purports to invoke the inherent jurisdiction of the court to contend that it should be allowed to "appear" on the hearing of the appeal. Ms Glenys Newall for the Commission has confirmed that, to the extent that the Commission had anything specific in mind in the alternative formulation of its application, it was seeking leave to instruct counsel as an amicus curiae. The Commission's chairperson has said that the Commission would exclusively bear the costs of its participation in the appeal, and would not seek costs from either of the other parties to the appeal.

The Commission's concern

4. The Commission has a statutory responsibility to work towards the elimination of all forms of discrimination, and to promote equality of opportunity between men and women. It regards the issues which the appeal raises about different and discriminatory retiring ages for men and women as important. Those issues have been addressed in other jurisdictions, and the Commission believes that their jurisprudence may be of considerable assistance to the Court of Appeal. That assistance can best be given by instructing counsel whose expertise includes the law of sex discrimination and who has a wide knowledge of the overseas jurisprudence. The Commission therefore proposes, if it is permitted to be joined as a party to the appeal or to appear on the hearing of the appeal, to instruct Ms Eleanor Sharpston QC, an eminent barrister in the UK, whose expertise in the area is unquestioned, provided that her application for admission to the Hong Kong Bar for the appeal is successful.

5. The Commission may provide legal assistance to persons who claim that they have been the victim of unlawful sex discrimination. The obvious question to ask, therefore, is: cannot the Commission's concern be met simply by Ms Sharpston being instructed by Ms Tsang's solicitors to represent her, and by the Commission funding that representation? Granted that the Court of Appeal would be materially assisted by Ms Sharpston's submissions, why is it necessary for the Commission to be joined as a party to the appeal or to appear on the hearing of the appeal?

6. The answer is said to be that the Commission's power to fund the litigation is circumscribed by section 85 of the Ordinance. The Commission takes the view that since Ms Tsang commenced the proceedings in the District Court before the Commission had completed its investigation, it had no power to fund the proceedings in the District Court. Presumably, it thinks that it has no power to fund her opposition to the appeal either. I confess that I am extremely sceptical about that. I rather think that the Commission is reading too much into section 85. But since I do not think that the outcome of this application turns on whether the Commission's view of its powers under section 85 is correct, I say no more on the matter.

Counsel as an amicus curiae

7. There is one other way in which the Court of Appeal could have the benefit of Ms Sharpston's submissions without the Commission being joined as a party to the appeal, and that is by the court giving leave to the Commission to provide the court with the services of Ms Sharpston who would make her submissions as amicus curiae. That was exactly what the Commission sought in Secretary for Justice v. Chan Wah (2000) 3 HKCFAR 293. I accept, of course, that there would be a difference between Ms Sharpston acting as amicus curiae on the one hand and acting as counsel for the Commission on the other. As counsel for the Commission, her duty would be to advance the Commission's case, whereas an amicus curiae has no sectional interest to serve. Her duty as an amicus curiae would be to lay before the court all the materials which may assist the court in reaching its conclusions and to make such submissions on those materials as she thinks appropriate.

8. But the critical point is that, even as an amicus curiae, she would not be prevented from advancing a particular contention as to the effect in law of those materials simply because she is bipartisan. If in her view the materials before the court should result in the court taking a particular view of the law and its effect, there would be nothing to prevent her from arguing for that view and its effect, as happened, for example, in Morelle Ltd. v. Wakeling [1955] 2 QB 379. Indeed, some would say that it would be her duty to do so. She would not be advocating for a particular view of the law and its effect because she had been instructed by the Commission to do so. She would be advocating for a particular view of the law and its effect because she believed that that was the correct submission to make. Mr Ronny Tong SC for Cathay did not contend otherwise, though he made the point (in my view, correctly) that an amicus curiae should not be allowed to advocate for a particular result.

The current application

9. It is against that background that I turn to the Commission's application to be added as a party to the appeal. The application is made under Ord. 15 r. 6(2), which provides, so far as is material:

".... at any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application -

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(b) order any of the following persons to be added as a party, namely -

(i) any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, or

(ii) any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter."

This provision contemplates a two-stage exercise. The court must first decide whether the body which seeks to be added comes within (i) or (ii). If it does not, the application must be dismissed. But if it does, the court's discretion to order the body to be added as a party is engaged, and the court must then decide how that discretion is to be exercised. Ms Newall contended that the Commission came within both (i) and (ii), though (ii) was very much her secondary position.

10. I do not think that the Commission comes within (i). It is not suggested that it comes within the first limb of (i), i.e. that it ought to have been joined as a party. What is suggested is that it comes within the second limb of (i), i.e. that its presence before the court is necessary to ensure that all issues in the appeal will be effectively and completely decided. In my opinion, the Commission does not come within this limb. I am prepared to assume in the Commission's favour, but without deciding, that without Ms Sharpston's submissions the court may not have all relevant materials laid before it and it may not have informed submissions based on those materials. But the Commission's presence before the court as a party to the appeal is not necessary for that purpose. That purpose can be achieved by Ms Sharpston making her submissions as an amicus curiae - especially as her participation in the appeal in that capacity will not prevent her from advancing what she contends is the correct view of the law and its effect.

11. The Commission's case as to why it comes within (ii) is based on two other cases which the Commission is funding. They are DCEO 1/2001 and DCEO 5/2001. There are some obvious differences between the facts of the present appeal and the facts of those cases. Again, I am prepared to assume in the Commission's favour, but without deciding, that at least some of the issues of principle in the current appeal are the same as those between Cathay and the Commission in those other cases. But even if the Commission's participation in the appeal could be justified on that basis, its participation in the appeal as a party to it would not be justified if, as I find, the Commission's interest in ensuring that the court receives the assistance it needs in a highly specialised area of the law can be met by the appointment of a suitable amicus curiae, who can advance such submissions as to how those issues of principle should be resolved.

Conclusion

12. For these reasons, I dismiss the Commission's application under Ord. 15 r. 6(2)(b) to be added as a party to the appeal. However, I am persuaded that the Court of Appeal would be greatly assisted by submissions from an amicus curiae on an area of the law which calls for experience and expertise, and who can draw to the court's attention relevant overseas materials. Indeed, Mr Tong confirmed that had the Commission's application been limited to an application for leave to instruct counsel as an amicus curiae, Cathay might well not have opposed that application. I therefore give leave to the Commission to provide the court with the services of counsel who could then make submissions to the court as an amicus curiae, upon condition that the Commission would neither be entitled to its costs from either of the other parties to the appeal or liable for the costs of either of the other parties to the appeal. At present, I take the view that all parties should bear their own costs of this application, and the order nisi which I make as to costs is that there be no order as to the costs of the application.

13. There are three final matters I should mention. First, it has not been necessary for me to reach any conclusion on the technical reasons advanced by Mr Tong for his assertion that the Commission could not be added as a party to the appeal under Ord. 15 r. (6)(2)(b), namely

(a) that the statutory role which the Ordinance gives the Commission is that of watchdog, that it cannot enter the arena of battle as a litigant save by giving assistance to the party claiming to have been the victim of unlawful sex discrimination, and that it cannot conduct litigation of this kind in its own right,

(b) that the Commission cannot come within Ord. 15 r. 6(2)(b)(i) because it has no "interest in the matters in dispute" (see Ord. 15 r. 6(3)) over and above Ms Tsang's own interest, and

(c) that the Commission cannot come within Ord. 15 r. 6(2)(b)(ii) because of the significant factual differences between the current appeal and the two other cases which the Commission is funding.

For the reasons I have given, I have found that the Commission should not be added as a party to the appeal under Ord. 15 r. 6(2)(b) without having to determine the correctness of these arguments. Mr Tong did not suggest that any of these arguments prevented the Commission from successfully applying for leave to instruct counsel as an amicus curiae.

14. Secondly, I have not overlooked the current debate over the extent to which interested bodies or groups should be allowed to intervene in cases which raise important issues of public interest. In that connection, I have read with interest the report prepared by JUSTICE and the Public Law Project, "A Matter of Public Interest", which discusses the issue at some length. I recognise that in the UK the Equal Opportunities Commission there and the Commission for Racial Equality have been permitted to participate in appeals in non-judicial review cases: see, for example, Shields v. E. Coomes (Holdings) Ltd. [1978] 1 WLR 1408 (a case strikingly similar to the present because there the Equal Opportunities Commission sought to participate in the appeal so as to assist the court in European discrimination law) and Science Research Council v. Nassé [1980] AC 1028. But it is not easy to see the route by which that participation was achieved, and I rather doubt whether in either of those cases it was intended that the Equal Opportunities Commission or the Commission for Racial Equality should actually become parties to the appeal. I concluded that I should determine the question of whether the Commission should be added as a party to the appeal by the conventional application of Ord. 15 r. 6(2)(b).

15. Thirdly, Ms Sharpston has already been instructed to represent the claimants in DCEO 1/2001 and DCEO 5/2001. Mr Tong was concerned that Ms Sharpston might thereby have lost the objectivity and impartiality which is the hallmark of an amicus curiae. I rather doubt whether Ms Sharpston's role as an impartial amicus curiae in the present appeal might be affected by such involvement as she may have had thus far in those two cases, but that is not a matter for me to decide on this application. It is a matter for the Chief Judge of the High Court to take into account, to the extent that he thinks it relevant to do so, on the application for her admission to the Hong Kong Bar for the appeal.