TAM SHU PO v. NG CHOR BIU AND OTHERS

IN THE SUPREME COURT OF HONG KONG

LABOUR TRIBUNAL APPEAL NO. 38/88

 CLAIM NO. 1626/87

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J U D G M E N T

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1. This is an appeal against the decision of Presiding Officer Timothy Lee not to set aside a judgment which had been entered against the applicant on 7th July, 1987.

2. I must say immediately that my sympathy lies with Mr. Lee and the decision he made. The explanation put forward by the applicant for the delay in applying to set aside the judgment was to say the least weak and unconvincing. The reason he gave was that he handed the papers to Mr. Ho who was the proprietor of the employer and then gave no further thought or consideration to the matter. This was notwithstanding the fact that on the attendance on 25th May, 1987 he was given clear advice by the Tribunal as to how the defence should be conducted.

3. However the important matter for me to consider is whether there is an arguable defence to the claim which was being made by the claimants. For this purpose it is useful to adopt the analogy of order 13 rule 9.

4. It was undoubtedly the case that the applicant would have a good defence if he was believed by the Presiding Officer that he was not their employer. It is clear from Labour Tribunal Appeal No. 88/86 Lam Pak Woon v. New Art Industrial Company that Macdougall, J. as he then was considered the merits of the case to be the most important matter for him to consider.

5. I have somewhat reluctantly come to the conclusion that I have no alternative but to order that the judgment must be set aside and to order that there be a hearing of the substantive issues between the parties. This being the case this appeal succeeds.

6. Costs to the 4th claimant and the 4th claimant's costs to be taxed in accordance with Legal Aid Regulations.

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