GRANT ELIOT COULSON v. ICON PROMOTIONS LTD.

Labour Tribunal Appeal No. 10 of 1997

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

APPELLATE JURISDICTION

(On appeal from Labour Tribunal Claim
No. L.T. 2424 of 1996)

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J U D G M E N T

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1. This is an appeal from a decision of the Presiding Officer of the Labour Tribunal. In essence the Defendant Appellant (DA) does not dispute the amount of the award made by the Presiding Officer (PO) on 31-1-97 nor the method by which it was assessed, nor that it was due.

2. Two points are pursued on the appeal:

3. That the PO erred in law by refusing to decline jurisdiction to hear the claim and to order the transfer of the claim to be heard with the DA's cross-claim in a High Court action A9576/96, which claim was for damages for breach of fiduciary duty.

4. In the alternative it was alleged that the PO erred in law in holding that the DA was not entitled to rely on its cross claim against the DA in the High Court action.

5. A brief history of the matter shows that the Claimant Respondent (CR) pursued outstanding commission against his erstwhile employer the Defendant Appellant (DA). The claim was filed on 17-7-96 and a first hearing fixed for 13-8-96, an appointment for interview was fixed for DA on 25-7-96.

6. On 13-8-96 CR and DA's representative appeared and the call over procedure was explained. The DA advised that a High Court claim was

contemplated with a Writ to be issued "in the next few days". The PO explained that if there were common questions involved in the Labour Tribunal and High Court cases he would consider transferring it. As the CR alleged this was a delaying tactic, the PO gave an early date for the next hearing to consider the issue of transfer.

7. On 27-8-96 the parties attended. The Writ had been issued for the High Court case on 21-8-96. It was received only that morning by the court despite the PO's direction on 13.8.96 that a copy of the Writ was to be provided to the Labour Tribunal within 7 days of the last hearing. The CR had not received it at all. The Labour Tribunal adjourned to consider the Writ and to allow the CR time to read it. On return to court the DA applied to transfer the Labour Tribunal claim to the High Court. As by this stage the DA had not filed a defence to the Labour Tribunal action a further date was fixed so the Labour Tribunal could consider that defence before any decision on transfer was made. DA was directed to file the defence within 14 days.

8. On 27-9-96 the parties appeared again, the defence having been filed and the application for transfer was repeated. In the course of the hearing the DA admitted to the Labour Tribunal that they were not disputing the claim for commission but were unable, without further advice, to tell the Labour Tribunal whether the question of set-off was being pursued. The Labour Tribunal directed that a perfected defence be filed on the issue of whether the commission claim was admitted or, if not, what the defence was, leaving aside the question of setting off.

9. The parties reappeared on 16-10-96 the defence of DA having reached the Labour Tribunal only the day before. The CR had not received it at all and was given an adjournment to consider it. When the parties reconvened the application for the transfer of proceedings was renewed, the parties were heard and the PO prefaced his order in these terms: "Considered all matters. I order the case be tried in the Labour Tribunal. Contractual claim. Application to transfer to High court refused." The order was made and reads: "Application to transfer by Defendant refused. Case remain to be tried in the Labour Tribunal." No appeal against this order was ever filed nor was leave to appeal out of time against this order ever sought, as should have been done under S.32 of the Labour Tribunal Ordinance, Cap. 25. The matter proceeded to a 2 day hearing on the 16 and 17 of January 1997. The DA had not filed witness statements in time as ordered and the matter had to be adjourned to a 2.30 start. It appears that DA had been dilatory from the start of the Labour Tribunal action.

10. The matters pertinent to the hearing were canvassed and the PO adjourned to consider his decision, delivering a judgment on the 31st January 1997. He concluded that the CR was entitled to the commission sought. At the hearing the question of the commission had effectively been conceded by the Claimant in any event.

11. I have explored the history of this Labour Tribunal claim to show that the question of whether or not the claim should be transferred to the High Court was a matter that was thoroughly canvassed by the PO who allowed the parties all the necessary time they needed to prepare their submissions. The PO was fully conversant with the issues and was able to make an informed decision as to the transfer. He was aware of the proposed High Court proceedings and the nature of that claim - whether or not to transfer the claim was a matter purely within his discretion, accepting the strictures of Section 7 and Schedule of the Labour Tribunal Ordinance.

12. An appeal court should be extremely wary of the danger of imposing its own discretion in place of that of the judicial officer who has exercised it. Only if it has been exercised in such a way that no reasonable judge regardful of his duty could have so exercised it, or if the judge has failed to have regard to the relevant facts and matters pertaining to the litigation would it be permissible to upset the exercise of the discretion. In this claim the PO took a very careful and prudent course in considering the question of transfer. He eventually dealt with the CR's claim as he had power to do under the Labour Tribunal Ordinance bearing in mind, as he must have done, that there was no real dispute by the DA about the commission. The matters raised by the DA's High Court action were complex matters more suited to the machinery of that court - the Defendant could pursue his remedies for the alleged breaches of fiduciary duty there. He has not been prejudiced in any way in that action because of the PO hearing the claim for commission. I find that the P.O. exercised his discretion in a proper and informed manner. The first ground of appeal fails.

13. The second and alternative ground I dismiss also. A careful reading of the papers relating to the Labour Tribunal hearing and the PO's judgment give no basis at all for the assertion made in the 2nd ground. The PO did not say that the Defendant was not entitled to rely on its cross claim in the Labour Tribunal. All that the PO did, was decline to transfer a claim that could properly, simply, cheaply and quickly be dealt with in the Labour Tribunal. The appeal of the Defendant Appellant is dismissed and costs are awarded to the Claimant Respondent.