HAROLD DEAN ARCHER v. THE HONG KONG CHANNEL LTD.

IN THE SUPREME COURT OF HONG KONG

LABOUR TRIBUNAL APPEAL NO. 12 OF 1996

(ON APPEAL FROM CLAIM NO. E3950 OF1995)

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J U D G M E N T

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1. This is an appeal by the claimant, against the order of the learned presiding officer in transferring the matter to the High Court. After making the order, the appellant sought a review of the decision and urged upon the learned presiding officer, amongst other things, his financial predicament and the time it would take for the matter to be resolved in the High Court. These are, of course, relevant considerations which the learned presiding officer duly took into account. Notwithstanding the further plea of the appellant, the learned presiding officer affirmed his previous order and decided against reviewing and changing his previous order. It is from this that the appellant is now appealing.

2.  The issue involved in this appeal is a relatively simple and straightforward one. It is accepted that no doubt we are dealing with a claim which is within the jurisdiction of the Labour Tribunal as the learned presiding officer has found.

3.  The reason for declining jurisdiction, as set out by the learned presiding officer in his reasons, was that the nature of the defence and the legal issues involved rendered the matter inappropriate for a resolution in the Labour Tribunal; and more appropriate to be dealt with in the High Court.

4. The appellant's claim is, of course, a straightforward claim for arrears of salary, bonus and other matters. It is the defence raised by the respondent that gave rise to the order for transfer. The defence raised by the respondent is that the appellant was guilty of breaches of duty as managing director of the company, that he had been guilty of wrongful manipulation of his said position as managing director for personal and private gains against the interest of the company.

5.  All these allegations go direct to the amount of the claim made by the claimant. It was alleged by the respondent that the allowances and bonuses were not authorised. It is the respondent's contention that the defence and the allegations they entailed require investigation of the company accounts as well as other company documents, including the auditors' report, the annual report and the board minutes. The defence raises legal issues which are by no means simple according to the respondent.

6. It is admitted that the nature of the dispute in the defence involved serious allegations and will not be appropriate subject matters for an informal summary form of adjudication. The allegations raised in the defence go direct to the appellant's reputation and it is his reputation that is at stake there.

The Labour Tribunal is designed for speedy resolution of labour disputes of a nature that formal court procedures are not necessary. It is in the light of this that a discretion has been given by the legislature to the presiding officers in an appropriate case that would require a more formal and proper investigation of complicated matters, that he can transfer the case to other more appropriate jurisdiction.

7.  In the premises, the Labour Tribunal is not designed to cater for disputes that would require a detailed analysis of voluminous and complicated documentation, or that would involve complex issues of facts or law. It appears from the time taken by the appellant and the great effort required of him in his submissions to the court today, that the matter is indeed of a complicated and complex nature. He ably highlighted the various disputes that exist between the parties in the defence. The appellant complained that the learned presiding officer had not properly investigated the materials placed before him by the respondent and came to a rushed decision in transferring the matter.

8. It is the contention of the appellant that the respondent was merely putting up a smoke screen and raising bogus and obviously frivolous issues in an attempt to ruin him in his financial position, by having the case transferred to the High Court and delaying him from obtaining his rightful salaries, bonuses and allowances.

9.  There is in law, no need for the learned presiding officer to conduct a full-scale investigation of the nature suggested by the appellant in deciding the issue at hand.

10.  I am satisfied that there is sufficient prima facie material before the learned presiding officer for him to come to the conclusion that there is a bona fide defence and/or, as Mr LEUNG would put it, counter-claim; as well as a set-off as alleged by the respondent. It is only encumbered upon the respondent to raise a bona fide defence to entitle him to request the Court to transfer the matter to the High Court. But of course, in the present case it was the learned presiding officer who initiated the transfer. The respondent merely supported the application by drawing the tribunal's attention to various matters and materials he presented.

11. I cannot find fault at all with the way the learned presiding officer exercised his discretion. I endorse his view that the defence is of such a nature that required proceedings in the High Court. It is impossible for the claim to be severed from the defence and/or counter-claim, as the defence raised goes direct to the claim of the appellant in that the defence is one of a set-off, and counter-claim against the appellant's claim. It is alleged in the defence and/or counter-claim that the amount claimed arose out of the alleged breach of duty of the appellant, that the amount claimed are unauthorised remuneration's arising out of a breach of duty of the appellant as the managing director.

12. Therefore, there is no alternative but to transfer the whole action to the High Court. The predicament alleged by the appellant as regards his financial position and the time that would be taken to resolve the matter in the High Court, are not sufficient to displace the need for a proper hearing of the case in the High Court. One must consider in particular, that there exists a statutory restriction on appeal from the Labour Tribunal.

13.  I am satisfied in the light of the above matters, that it would be inappropriate for this matter to be tried in the Labour Tribunal. In the interests of justice, the learned presiding officer has properly exercised his discretion to transfer the matter to the High Court. One must never forget that the desire for low cost and speedy disposition of disputes cannot be at the expense of doing justice. This is a case which requires a proper hearing assisted by legal representatives, if parties wish to do so, in a formal court of law and not by way of speedy summary resolution in an informal tribunal.

14.  For the reasons given the appeal is dismissed.

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