VERMEERBERGEN PETER ALFRED v. SWISSTRIBE LTD

HCLA 36/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO 36 OF 2015

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO LBTC 1570 OF 2014)

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J U D G M E N T

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Introduction

1.  The defendant carried on business of design and production of displays and retail fixtures mainly for watch/jewellery brands. The claimant commenced employment with the defendant as its custom relation manager on 1 February 2013. Disputes arose between the parties following the termination of the claimant’s employment with the defendant on 1 April 2014. On 26 May 2014, the claimant filed a claim at the Labour Tribunal (“Tribunal”).

2.  By a consent order dated 24 July 2014, the defendant was ordered to pay $3,377.00 to the claimant in full and final settlement for his claim for arrears of wages and expenses. The parties then went to trial in respect of the dispute over inter alia the claimant’s (i) entitlement to commission, and (ii) claim for wages in lieu of notice. On 12 August 2015, the Presiding Officer (“PO”):

(a)  entered judgment in favour of the claimant against the defendant in the sum of $6,586.61 being $2,197.00 for commission under clause 2.2 (“Clause 2.2”) of the employment contract of the claimant with the defendant (“Employment Contract”) and $4,389.61 for commission under clause 7.2 (“Clause 7.2”) thereof (collectively, “Awarded Commission”) with interest on such commission pursuant to section 39(3) of the Labour Tribunal Ordinance Cap 25 (“Ordinance”) from the date of the award until satisfaction;

(b)  dismissed the claimant’s claim for (i) commission other than the Awarded Commission (“Claimed Commission”) and (ii) wages in lieu of notice;

(c)  dismissed the defendant’s counterclaim against the claimant for wages in lieu of notice and for return of notebook computer;

(d)  granted no order as to costs; and

(e)  ordered the award sum to be paid to the claimant out of the security paid into court by the defendant, and the balance of the security be refunded to the defendant (“Determination”).

Unless otherwise stated, references to sections in this Judgment are references to sections in the Ordinance.

3.  On 16 August 2015, the claimant applied to the Tribunal for review of the Determination. On 20 August 2015, payment out of the security was stayed until further order of the court. On 7 September 2015, the claimant’s application for review was heard. On the same day, the PO dismissed the claimant’s application for review with no order as to costs, and he further ordered that the award sum be paid out of court to the claimant, and the balance of the security be refunded to the defendant (“Balance Security”) (“Review Determination”).

4.  The PO gave brief oral reasons at the hearings on 12 August and 7 September 2015 for the Determination and Review Determination (“Brief Reasons”), and handed down formal Reasons for Decision on 29 October 2015 (“Reasons”).

5.  It was apparent from the Brief Reasons and Reasons that:

(a)  the parties disputed over terms of the Employment Contract, and the PO concluded the written Employment Contract adduced by the claimant was the correct version;

(b)  the PO allowed commission under Clauses 2.2 and 7.2 (collectively, “Clauses”) based on the actual sales figures provided by the defendant that excluded the Claimed Commission; and

(c)  the PO rejected the claimant’s claim for commission in respect of the Casio and Arab accounts based on an alleged oral contract made with Mr Genoud for the defendant.

6.  On 14 September 2015, the claimant applied for leave to appeal against the Determination (“Leave Application”). On 27 January 2016, the claimant filed Amended Grounds of Appeal, which could broadly be divided as challenge against the PO’s decision to dismiss the claimant’s claims for (a) the Claimed Commission and (b) wages in lieu of notice. The Leave Application was heard by this court on 19 February and 4 March 2016. By my Decision handed down on 9 March 2016, I granted leave for the claimant to appeal against the Determination and Review Determination on (a) above but refused leave to appeal on (b) above.

7.  On 15 April 2016, the claimant filed Notice of Originating Motion to Appeal (“Notice”) to set aside the following orders in the Determination and Review Determination: (a) the claimant’s claim for the Claimed Commission be dismissed, (b) there be no order as to costs, and (c) the award sum be paid out of the Tribunal to the claimant and the Balance Security be refunded to the defendant, and to seek the following orders: (i) the claim for the Claimed Commission be remitted to the Tribunal for re-trial by another presiding officer, (ii) all security previously paid into court by the defendant be reinstated, and (iii) costs of the trial and review before the PO be remitted to the re-trial presiding officer for determination.

8.  By the following grounds of appeal in the Notice, the claimant claimed the PO erred in law in that:

(a)  Discovery Ground – the PO failed to properly discharge his duty, to exercise his power in the inquisitorial proceedings before the Tribunal and/or to assist the claimant acting in person under sections 20 and/or 14(4)(c) in that he failed to explain to the claimant the procedure for seeking discovery against the defendant or to exercise the PO’s power to discover relevant documents from the defendant, and then went on to dismiss the claimant’s claim for the Claimed Commission on the main ground that such claim was based on “mere speculation of sales by the Defendant”:

(i)  in the context of the claimant’s claim for the Claimed Commission on the basis of the defendant’s sales, instead of dismissing the claimant’s claim on the ground that the sales alleged by the claimant were speculative and unsupported by invoices or sales records, the PO should have conducted an enquiry with the defendant and sought discovery of the actual sales records relating to the customer/accounts of the defendant relevant to the claimant’s claim so that concrete relevant evidence would be considered at trial, whether in support of or contradictory to the claimant’s claim for the Claimed Commission;

(ii)  during the course of the proceedings, the PO formed the view and represented to the claimant erroneously that the Tribunal did not have discovery procedure;

(b)  Enquiry/Finding Ground – the PO failed to make any or any proper inquiry/finding as to whether the customers/accounts listed in the claimant’s claim for the Claimed Commission were accounts “managed” or “co-managed” or that they were “approached” by the claimant leading to sales, which were disjunctive criteria for the claimant’s entitlement to the Claimed Commission under the Clauses as found by the PO; and

(c)  Criterion Ground – the PO in dismissing the claimant’s claim for the Claimed Commission erred in law by relying on a qualifying criterion (ie sales to the defendant’s direct customers) which was different from the contractual criteria stipulated in the Employment Contract.

9.  The defendant made the following points in response: (a) in respect of the Discovery Ground the PO had already discharged his statutory duty under section 20, and there was nothing to suggest there was any wrongful exercise of his discretion in discharging this duty, and (b) in respect of the Enquiry/Finding and Criterion Grounds, the claimant’s complaints on closer examination were merely attacks on findings of fact that did not constitute any error of law, and the PO had already enquired/considered the element of “approach” under the Employment Contract.

Legal principles: appeal

10.  Hearings at the Tribunal are conducted in an informal manner (section 20(1)). The presiding officer may inter alia subpoena witnesses, order the production of any document, record, book of account or other exhibit and put to a party or witness such questions as he may think fit (section 20(2)), and shall investigate any matter which he may consider relevant to the claim, whether or not it has been raised by a party (section 20(3)).

11.  A party’s right to appeal against an award, order or determination by the Tribunal is limited to questions involving points of law or excess of jurisdiction (section 32(1)). On such appeal, the Court of First Instance may draw any inference of fact, but may not (a) reverse or vary any determination made by the Tribunal on questions of fact or (b) receive further evidence (section 35(2)).

12.  The applicable principles have been summarised by Au J in Wai Mei Lai Stella v Viya Pramita as follows:[1]

“(2) Finding of facts by the Tribunal is generally immune from challenge as it involves no error of law, unless such is perverse or irrational, or where there is no evidence to support the decision or where the decision was made by reference to irrelevant factors or without regard to relevant factors: ......

(3) Further, failure to discharge the statutory duty to investigate is a ground of appeal. However, it is trite that not every failure to investigate a relevant matter will give rise to an appeal. The appellate court has to be satisfied that the subject matter of the complaint must not only be relevant but be of such a nature that the lack of investigation will give rise to injustice, in that, a fair and proper determination of the claim cannot be attained: ......”

13.  Likewise, in Monti Mary Pais v Shailesh Ramesh Kuwadekar,[2] Lam J (as he then was) held that if a finding of fact is one in which there is no evidence to support or with which the evidence is inconsistent or one in which no reasonable Tribunal could reach or one which was based on a disregard or misunderstanding of the evidence, such finding would be considered as an error of law.[3] The fact that the Tribunal preferred the evidence of one witness to that of another by itself does not come within these categories.

14.  In Kwong Miles Services Ltd v Commissioner of Inland Revenue, Bokhary PJ said:[4]

“37. In any appeal on law only the appellate court must bear in mind what scope the circumstances provide for reasonable minds to differ as to the conclusion to be drawn from the primary facts found. If the fact-finding tribunal’s conclusion is a reasonable one, the appellate court cannot disturb that conclusion even if its own preference is for a contrary conclusion. But if the appellate court regards the contrary conclusion is true and only reasonable one, the appellate court is duty-bound to substitute the contrary conclusion for the one reached by the fact-finding tribunal. ......”[5]

15.  In Kaifull Investments Ltd v Commissioner of Inland Revenue, it was held that the fact other inferences might just as plausibly be drawn from the available material was insufficient to establish that the first instance court/ tribunal acted unreasonably and had come to a conclusion that no court/ tribunal acting judicially could reasonably have made.[6] It is only where the lower court decision exceeds the generous ambit within which reasonable disagreement is possible and is in fact plainly wrong that an appellate court is entitled to interfere.[7]

16.  Further, Order 55 rule 7(7) of the Rules of the High Court (“RHC”) provides that the Court of First Instance shall not be bound to allow the appeal on the ground merely of misdirection, or of the improper admission or rejection of evidence, unless in the opinion of the court substantial wrong or miscarriage has been thereby occasioned.

Legal principles: duty to investigate

17.  I have referred to the requirements of section 20 in paragraph 10 above. The relevant principles that underlie the Tribunal’s statutory duty to investigate have been summarised in Chan Suk Bing Angie v Harbour Phoenix Ltd & anor:[8]

“ Section 20 of the Ordinance provides that hearings at the tribunal shall be conducted on an informal manner. This is mainly due to the prohibition against legal representation in the tribunal. This in turn, brought about s 20(3) which provides that ‘the Presiding Officer shall investigate any matter which he may consider relevant to the claim, whether or not it has been raised by a party’. ...... Presiding Officers should not allow themselves to derogate from this statutory duty under any circumstances, if a fair and just disposition of the claim is to be ensured. The requirements of justice in a judicial system such as the tribunal is such that, the Presiding Officers are required to assume an active inquisitive role in the proceedings. ......” (my emphasis)

18.  In Chan Yat San v Future Lucky (296) Ltd, Mimmie Chan J said as follows:[9]

“14. Further, the inquisitorial role of the Presiding Officer under s.20 of the Ordinance involves the duty to investigate relevant matters. Incidental to its performance of such a role and its duty to ensure a fair trial, in cases where there are disputes on facts and the credibility of witnesses is essential to the Presiding Officer’s determination, the Presiding Officer has the duty to raise with a party matters that require its clarification or elaboration, on which the Presiding Officer has queries and which may be determined against the party. This is in order to give the party an opportunity to deal with these matters and to call evidence on such matters.”

19.  Lam J (as he then was) in Le Thi Bich Thuy Kitty v Sheraton International (Hong Kong) Ltd trading as Sheraton Hong Kong Hotel & Towers explained that the manner of investigation is a matter of discretion to be exercised by the presiding officer in view of the facts of the case before him. Regard can be taken as to the issues in dispute, the incontrovertible evidence before the Tribunal, and the material placed before the Tribunal by the parties after inquiry by the presiding officer.[10] But the presiding officer is obliged to remain neutral and impartial in carrying out his duty to investigate and not play the role as advocate for one litigant.[11]

20.  The statutory duty to investigate is not an absolute one. In Chan Suk Bing Angie, it is said that:[12]

“...... the Presiding Officers ...... are only bound to investigate matters they ‘may consider relevant’. ...... Firstly, very often ...... no conscious express determination of relevance would be made by the Presiding Officers, in which case no question of any prohibition under s 35(2) can arise. It is then, for the appellate court to determine if the matter alleged is a relevant matter which ought to have been investigated. Secondly, the relevance of a matter would inevitably depend on the issues of law and facts involved. The application of legal principles or the failure to do so in reaching a determination on the relevance, is a matter upon which an appeal can lie.

It is obvious that not every failure to investigate a relevant matter will give rise to an appeal for a failure to discharge a statutory duty. The relevant matter forming the subject matter of the complaint must not only be relevant but be of such a nature that the lack of investigation will give rise to injustice, in that, a fair and proper determination of the claim cannot be attained.[13] All the circumstances of the case as well as all other findings must be given all due regard before such a complaint can be upheld. Further, not only is the total absence of investigation a ground of complaint, totally inadequate or useless investigation which amount to no investigation at all will also suffice. It is however, never sufficient for the appellate court to conclude that it would have preferred to approach the matter differently or that there is a better way to investigate the claim. It is not open to the appellate court to prefer its own views to that of the Presiding Officer’s as to the manner of investigation.[14] To suffice, it must be a clear and obvious case that the inadequacy of the investigation will render an ordinary reasonable man on the tram to Shaukeiwan to conclude that injustice has resulted in that a fair and proper determination of the claim cannot be attained.

...... The insufficiency of evidence to support a finding or the inconsistency of a finding with the evidence, are matters that the appellate court can properly take into account to determine whether there has been a failure to conduct any or any adequate investigation of material facts relevant to such a finding. ...... They are only matters which may give rise to a need for further investigation before a determination should be made. If there has been a proper and adequate investigation of the claim, no complaint can be made against any such findings of fact.” (my emphasis)

21.  In applying the above principles, Lam J (as he then was) in Le Thi Bich Thuy Kitty said:

“11. Hence, the duty to investigate cannot replace a party’s right to cross-examine witnesses called by others and to challenge the case of the others ......

12. The duty to investigate does not empower the Presiding Officer to compel a party to give evidence against his own wishes, thereby exposing him to cross-examination (as distinct from summoning a witness). However, the Presiding Officer does have a duty to invite a party to consider giving evidence on relevant matters when it is apparent that he could give relevant evidence on important issues in the case ......

13. If the Presiding Officer discerns that there are relevant matters which the parties have not explored, he is obliged to look into it and should invite the parties to comment and guide (and if necessary, direct) them to produce further evidence or documents ......

14. There is nothing wrong for a Presiding Officer to lead a witness through his evidence in chief or to adopt his witness statement as evidence in chief ......

15. The duty to investigate should not be confused with the power to summon witnesses. A Presiding Officer can still decide a case by reference to burden of proof and there is no duty on the part of the Presiding Officer to summon witnesses to fill the gaps in the evidence of a litigant, particularly when a Presiding Officer had already reminded a party of the significance of the evidence of a particular witness. A litigant should bear the primary responsibility in the preparation and procurement of evidence in support of his case. ......

16. However, if the Presiding Officer had not explained adequately the significance of the evidence of a witness, and a party had no reason to suspect that the other evidence adduced by him would be open to doubt if a witness is not called, the Presiding Officer should not solely rely on the failure to call such a witness to disbelieve the other evidence before the court.”

Legal principles: discovery

22.  Hong Kong Civil Procedure 2017 states that “Order 24 [of the RHC] applies as much to Labour Tribunal proceedings as other courts: Wong Yin Fong & Others v. ISS Hong Kong Services Ltd [2005] 2 H.K.L.R.D. 648, CFI.”[15] But it appeared Wing Yin Fong & ors[16] dealt with a different point, ie the presiding officer should not withhold documents disclosed by the defendant from inspection by the claimant when the presiding officer did not exclude the admission of such documents as evidence or treat them as irrelevant.

23.  Mr Li, counsel for the defendant, submitted the legal position concerning the production of documents was therefore governed by section 20(2). However, such provision simply provides that the presiding officer “may ...... order the production of any document, record, book of account or other exhibit ...... as he may think fit”. Neither Mr Li nor Mr Shum, counsel for the claimant, referred this court to Wallbanck Brothers Securities (Hong Kong) Limited v Cheng Wai Kong & ors which concerned an application for leave to appeal against the decision by the adjudicator of the Small Claims Tribunal refusing to order certain defendants to make specific discovery of documents.[17]

24.  Section 16(2)-(3) of the Small Claims Tribunal Ordinance Cap 338 provides that (a) such tribunal may require the production of any document, record, book of account or other thing, which is relevant in any proceedings, and (b) such tribunal shall inquire into any matter which it may consider relevant to a claim, whether or not it has been raised by a party. Such provisions are a close image of section 20(2)-(3).

25.  Au-Yeung J said as follows in Wallbanck Brothers Securities (Hong Kong) Limited:

“12. In discharging its duty of investigation, an adjudicator may in his discretion require a party to produce documents so as to achieve a fair outcome. The burden, nevertheless, remains on an applicant for discovery to satisfy the court that it is appropriate to make such an order.

13. Analogous to the principles applicable to High Court proceedings, an applicant fordiscoverymust make out a prima facie case that: (1) a specified document or class of documents exists; (2) the party against whom the order is sought has or had the documents in his possession, custody or power; (3) the documents relate to a matter in question in the action; and (4)discovery is necessary either for disposing fairly of the cause or matter or for saving costs. Once a prima facie case is made out, the court has discretion to order disclosure. See Tullett Prebon (Hong Kong) Ltd v Chan Yeung Fong Nick and others, HCA 2197/2009, 9 June 2011, To J; Berkeley Administration Inc v McClelland [1990] FSR 381 (CA) at 382 per Mustill LJ, as he then was.

14. Discovery which solely relates to credit is not allowed: Ngan In Leung v Chu Yuet Wah, 7.12.2012, §25.

15. Likewise, fishing expedition on the part of the applicant would not be allowed: Ngan In Leung v Chu Yuet Wah, §26; Mariner International Hotels Ltd v Atlas Ltd & another (HCA 10714, 10752 and 10821 of 1998), 18.1.2002, at §9, Burrell J.

16. Though relevance is established, the order must identify with precision the document or documents or categories of document which are required to be disclosed. The class must not be defined so widely as to include documents which are not relevant to the issue. The prerequisites of existence, possession and relevance must be established in respect of the class described as a class, not as regards some in the class only: See Ngan In Leng, at §§34-35.”

26.  I see no reason why these principles should not apply to the presiding officer’s exercise of the power under section 20 given the similarity of such provision to section 16 of the Small Claims Tribunal Ordinance Cap 338. In the circumstances, the broad principles on discovery applicable to High Court proceedings form a useful guide. I also bear in mind that section 27(2) provides that “[the] rules of evidence shall not apply to proceedings in the tribunal, which may receive any evidence which it considers relevant”.

Legal principles: duty to give reasons

27.  There is in general a requirement that a tribunal of fact must give adequate reasons for its decision.  In Zhou Cui Hao v Ting Fung Yee, it was held that:[18]

“Generally speaking, a professional judge is under a duty to analyse in his judgment the material points in the evidence of the case and give reasons as to why he has reached a particular conclusion or decision. This is the only way to make people understand why their evidence is not accepted by the court and why they lose in a case. Only by this can justice be seen to be done. Furthermore, the losing party needs to be clear on whether there is any error in the reasons for the decision given by the court before he can decide whether to appeal or not, and, at a later stage, submit to the Court of Appeal his grounds of appeal in order to seek to set aside the original decision. A professional judge is under a duty to give adequate reasons for any decision which he has made. This is a principle of paramount importance in the common law system. ......”

28.  In Oriental Daily Publisher Ltd v Commissioner for Television and Entertainment Licensing Authority, Li CJ gave the following guidance on reasons to be given by the tribunal:[19]

“First, the reasons given should show that the tribunal has addressed the substantial issues before it and show why the tribunal has come to its decision. There may not be any need however to address every single issue. But the reasons should show that the issues that arise for serious consideration have been considered.

Secondly, ...... [in some] instances, the duty to give reasons could be discharged by describing the contents without much more. Apart from cases of this kind, a decision ...... would not normally be adequate [where such] statements would in effect assert conclusions and would not reveal why the tribunal has come to such conclusions.

Thirdly, the reasons may not require great elaboration and they may be brief.  It is only when they are defective in substance that they should be considered inadequate. Ultimately, what are adequate reasons in the circumstances of a particular case have to be approached sensibly.”

As explained by the Court of Appeal in Re Profit Success Development Limited,[20] “[whether] adequate reasons have been given in a particular case is, in other words, a fact sensitive question”.

Enquiry/Finding and Criterion Grounds

29.  As a starting point, the PO accepted[21] the claimant’s version of the Clauses, which meant the claimant was entitled to 3% commission and residual commission of sales amount on all accounts “managed”, “co-managed” or “approached” by him leading to sales, and any outstanding commission or residual commission for accounts “managed”, “co-managed” or “approached” by him leading to future sales for a period of 24 months after termination of employment.

30.  The claimant’s claim for the Claimed Commission listed 5 accounts (“Clause 2.2 Accounts”) and 34 accounts (“Clause 7.2 Accounts”) under Clauses 2.2 and 7.2 respectively. According to the claimant’s supplemental statement dated 23 May 2014, the Claimed Commission under Clause 2.2 essentially concerned “CASIO JAPAN and OVERSEAS MARKETS Direct or via AD Works”, “AL HOMAIDHI Direct or via MS Retail, Time Management Services”, and “AL SHAYA Direct or via MS Retail, Time Management Services”, ie the Casio and Arab accounts.  It was said AD Works (“ADW”), Time Management Services (“TMS”) and MS Retail (“MSR”) were agents of Casio, Al Homaidhi and Al Shaya. The Clause 7.2 Accounts were inter alia brand names.

31.  Essentially, the claimant’s case was that he “approached” Casio, Al Homaidhi and Al Shaya which led to sales, but for such sales Casio, Al Homaidhi and Al Shaya used their agents ADW, TMS and MSR as middlemen/intermediaries to acquire products from the defendant,[22] which would explain why, say, (a) ADW being Casio’s middleman/intermediary did not deal with the claimant, (b) the defendant “sold” the products to ADW that were ultimately for Casio, and (c) the invoice list disclosed by the defendant [HB/737-734] showed invoices for ADW, TMS and MSR and none for Casio, Al Homaidhi and Al Shaya. The claimant claimed the same methodology was adopted for Al Homaidhi and Al Shaya and their middlemen/intermediaries TMS and MSR. It was the claimant’s case that whatever the manner in which the Casio and Arab accounts and other brand names acquired products from the defendant, the claimant was the one who “approached” them which led to sales made via, say, ADW, TMS and MSR, and the true accounts were, say, the Casio and Arab accounts.

32.  Paragraphs 38-39 of Mr Shum’s written submissions set out various extracts of the claimant’s claim, statements, submissions, visual aid and review application to illustrate the claimant’s case set out in the above paragraph. It is unnecessary for me to set out details of those extracts save to say I have carefully considered them, and they essentially reflected the claimant’s claim/evidence for the Claimed Commission.

33.  Since the “approached” criterion was in issue for the present appeal, perhaps it would be useful to note the claimant’s illustration of such criterion by way of a meeting with Casio in the summer of 2013 as canvassed in the claimant’s statements and evidence at trial: (a) Ayako Sakuraba of the defendant was skilled in product/quality control but the claimant was skilled in “working in high level functions”, (b) the claimant by using his experience, contacts and influence did the prep/ground work “from top corporate down, so that the approvals will come fast and easily ......”, (c) such prep/ground work by the claimant culminated in a meeting at Casio’s headquarters that unlocked Casio’s huge sales potential, (d) the claimant personally contacted Casio’s senior management Mr Takahashi (whom the claimant came to know personally when carrying out his groundwork) to attend the meeting, and he directly dealt with Mr Takahashi at the meeting, and (e) at such meeting Mr Takahashi told the claimant Casio’s orders for the defendant would be placed via ADW (which the claimant knew was a political decision to avoid issues between existing and new suppliers), “but left the door open for direct work as well”.

34.  In short, the claimant claimed his work was to “strategically contact several people in the higher levels at CASIO to facilitate a bigger deal and sales coming”, and although the claimant preferred direct sales it was decided that Casio would place orders via ADW as middleman/intermediary, so whether or not there were direct orders by Casio to the defendant,

“...... CASIO is the account and [ADW] is the middleman ...... The person ordering is CASIO, or the account ordering is CASIO, and the payment is coming from CASIO, from their budget. So, if it goes through a middleman, okay. [MSR] is also a middleman for Al Homaidhi but ...... Al Homaidhi’s the account ...... we’re talking about using a middleman but the customer is Al Homaidhi, the customer is CASIO ...... So, in terms of Swisstribe, for example, you can make the whole display [product] and [ADW] is just the in-between person to do the invoicing or what not or they get their little commission or I-don’t-know-what but it’s the same products moving ......” [transcript/232-233]

35.  The defendant admitted there were invoices evidencing sales to ADW, TMS and MSR [HB/737-738] (who, according to the claimant, were the agents/ middlemen/intermediaries of the Casio and Arab accounts), but claimed no commission was due to the claimant for these sales as ADW, TMS and MSR by letter denied involvement by the claimant. The defendant further claimed it did not have invoices/sales for the Casio and Arab accounts, so no commission was payable to the claimant on these existing accounts [HB/737-738].

36.  Turning to the Enquiry/Finding Ground, Mr Shum complained the PO failed to make any proper enquiry/finding as to whether the claimant “approached” the Clauses 2.2 and 7.2 Accounts. For the Criterion Ground, Mr Shum submitted the PO erred in adopting the wrong criterion, ie only the defendant’s “direct” customers would be considered under the Clauses. Mr Shum submitted these grounds of appeal were borne out by the Brief Reasons and Reasons.

37.  In paragraph 10 of the Brief Reasons for the Determination (“Paragraph 10”), the PO made the following finding and proceeded to dismiss the claim for the Claimed Commission under the Clauses:

“10. In the claimant’s list of items, he has made a long list, with substantial amount claimed. ...... He also disregarded the fact that some of the customers were actually not the direct customers of the defendant, which I do not accept. Even if there are some brands that might, through a customer of the defendant, got the defendant’s products, it was only a resale. That did not make those brands direct customers of the defendant. ......” (my emphasis)

Mr Shum submitted that given the PO’s finding set out in paragraph 29 above, “direct customers” was not the criterion for determining the claimant’s entitlement to the Claimed Commission under the Clauses.

38.  Mr Shum submitted the PO fell into the same error in the Reasons:

“25. The Casio and Arab accounts were accounts managed by Mr Mottet and his wife, even if the Claimant had the opportunities to have discussions with these customers, that did not amount to managing or co-managing unless there were orders taken by him or that he was expressly so assigned which was not what happened in my view.

26. Further, the Claimant had been working for the Defendant for over 1 year and he had not received commissions from Casio and Arab accounts. Although the Claimant alleged that he had asked about it and was told to wait, the fact that the non-payment continued for such a long time during his employment without any action taken by him is simply unbelievable.

27. In these circumstances, I do not accept the Claimant’s story on the oral agreement and I find that there was no such oral agreement made between the Claimant and the Defendant.

28. There were orders made by AD Works (“ADW”) and Time Management Services (“TMS”) and MS Retail (“MSR”) for products which ultimately supplied to Casio and Al Homaidhi. The Claimants said ADW and TMS/MSR were agents only. In my view, even though the products might be ultimately supplied by the Claimant, it was only a resale, ADW and TMS/MSR should be the customers. Like the Claimant said, Casio said business would only be done with ADW for political reasons. ADW and TMS/MSR all denied the involvement of the Claimant by letters.

29. In these circumstances, the Claimant did not manage or co‑manage directly or indirectly the Casio and Arab accounts.  Even if there were visits or discussion with them, that was not enough as said be managing or co-managing and for existing customers like them, the Claimant could not be considered approaching them that led to business either.”

39.  I agree with Mr Shum that paragraphs 26-27 of the Reasons addressed the question of whether or not the claimant had an oral agreement with Mr Genoud of the defendant that the claimant would be entitled to commission from the Casio and Arab accounts based on the alleged oral agreement. The PO rejected such alleged oral agreement, and there was no appeal by the claimant against such finding. But the question remained whether the claimant was entitled to the Claimed Commission based on the criteria set out in Clauses. As I understand from Mr Li’s submissions, he did not seek to dispute “management”, “co-management” and “approach” that led to sales or future sales were 3 disjunctive criteria in the Clauses.

40.  In my view, the implication from the PO’s reasons was that:

(a)  The Casio and Arab accounts were “managed” by Mr Mottet and his wife, so the claimant did not “manage” or “co-manage” these accounts unless (i) there were orders taken by him or (ii) he was expressly assigned to manage or co-manage such accounts, which did not happen.

(b)  The PO noted (i) Casio would only do business with ADW for political reasons and (ii) products under certain orders made by ADW, TMS and MSR were ultimately supplied to the Casio and Arab accounts, and the PO was also alert to the claimant’s case that ADW, TMS and MSR were agents for the Casio and Arab accounts, but he nevertheless took into account the denial of involvement of the claimant by ADW, TMS and MSR, and concluded the defendant’s “customers” were ADW, TMS and MSR who “resold” the products to inter alia the Casio and Arab accounts.

(c)  “In these circumstances”, the claimant did not “manage” or “co-manage” the Casio and Arab accounts “even if” (i) the claimant had “opportunities to have discussion with these customers [Casio and Al Homaidhi]” and/or (ii) “there were visits or discussions with them [Casio and Arab accounts]”.

(d)  Further, for existing customers like “them”, ie the Casio and Arab accounts, the claimant could not be considered as “approaching them that led to business either”.

41.  It was immediately seen that paragraph 40(a)-(c) above focused on the criteria of whether the claimant “managed” and/or “co-managed” the relevant accounts. Although Mr Li complained that P sought to attack the PO’s findings of fact, it appeared Mr Shum’s greater concern was whether there was sufficient enquiry/finding as to whether or not the “approached” criterion had been satisfied, and if so the reasons therefor. But Mr Li submitted the PO had considered the “approached” criterion under the Employment Contract (see paragraph 40(d) above).

42.  I note that the PO in the Brief Reasons and Reasons did not expressly articulate the precise meaning/scope of the “approached” criterion save to say it did not apply to existing customers like the Casio and Arab accounts. Further, the PO did not make express finding as to whether P did “approach” the Casio and Arab accounts, eg carrying out prep/ground work and/or pitched for sales with such accounts/customers, but instead the PO proceeded on the assumed basis that “even if” the claimant had opportunities to have discussions with these customers and/or “even if” there were visits to or discussion with them. On such assumed basis, the PO did not appear to have enquired whether the claimant’s efforts made directly to Casio, Al Homaidhi and/or Al Shaya did result in these ultimate customers placing orders with the defendant via their agents ADW, TMS and/or MSR as middlemen/intermediaries for ultimate supply of such products to them, and/or did not explain why such sales under the middleman/intermediary resale mechanism did not meet the “approached” criterion. After all, the claimant’s case was consistent with and did not contradict the following matters highlighted in paragraph 28 in the Reasons: (a) ADW, TMS and/or MSR acquired products from the defendant for “resale” to the Casio and Arab accounts and (b) the claimant who directly dealt with the ultimate customers being the Casio and Arab accounts was not involved with their agents ADW, TMS and/or MSR for orders intended for such accounts. Indeed, it was the essence of the claimant’s case that it was the ultimate customers (whom the claimant dealt with to facilitate sales) who (due to political reasons) directed their middlemen/intermediaries to acquire products from the defendant.

43.  That being the case, if the PO were to reject the claimant’s claim for the Claimed Commission (as he did), it behoved the PO to make appropriate enquiry/finding as to what he considered to be the factual fallacy of the claimant’s case beyond the facts/matters in paragraph 42(a) and (b) above that were consistent with the claimant’s case and to give adequate reasons therefor rather than merely state those facts/matters in paragraph 28 of the Reasons (which matters were not even mentioned in Paragraph 10). In my view, the Brief Reasons and Reasons fell short of demonstrating the PO had addressed or sufficiently addressed these matters and/or given adequate reasons for his decision.

44.  Perhaps the PO failed to address these matters because he had focused on whether the brands were “direct customers” of the defendant (as evident from Paragraph 10). Even Mr Li did not support this as a relevant criterion for calculating commission since his written submissions suggested the PO did not base his reasoning on whether the sales were made to a direct or indirect customer of the defendant. But I am unable to discern any other basis in the Brief Reasons for the PO’s conclusion other than his view that some brands (presumably the Casio and Arab accounts) were not the defendant’s “direct customers” as they might have acquired the defendant’s products “through a customer of the defendant” via “resale”. Such reasoning was echoed in paragraph 28 of the Reasons, which again focused on ADW, TMS and MSR being customers of the defendant with “resale” to the Casio and Arab accounts. But such reasoning[23] fell short of explaining why, on the assumed basis that “even if” the claimant visited the ultimate customers and discussed sales with them, sales to such ultimate customers that resulted from such efforts via an intermediary resale mechanism as required by the ultimate customers for their own political reasons would not meet the “approached” criterion, especially when the Clauses did not expressly refer to “direct sale” only or the sale must be to a customer (and not to an agent of a customer).

45.  Mr Li suggested that paragraph 29 of the Reasons showed the PO based his reasoning on whether the sale was to an existing customer and whether any “approach” to such existing customer led to any business, and that such criterion was not different from that stipulated in the Employment Contract. But in the Brief Reasons and Reasons, there was no articulation as to (a) the meaning/scope of the “approached” criterion, and (b) why such criterion was not met if the customer was an existing customer, particularly when the PO proceeded on the assumed basis that “even if” the claimant had opportunities to have discussions with these existing customers and there were visits to and discussion with them, which according to the claimant resulted in orders albeit notionally placed through their agents/middlemen/ intermediaries. I agree with Mr Shum the aforesaid “even if” considerations should at least give rise to investigation/enquiry as to whether the claimant’s such visits/discussions were “approaches” under the Clauses. If they did, then there was no question there were sales evidenced by invoices via ADW, TMS and MSR [HB/737-738] and the remaining question would be whether the claimant’s “approaches” led to such sales.

46.  I find the PO erred in law in failing to (a) make proper enquiry/ finding as to whether sales/invoices for the Clauses 2.2 and 7.2 Accounts resulted from the claimant’s “approach”, and (b) upon such inquiry/finding to apply such alternative criterion expressly provided/agreed in the Employment Contract to determine whether the claimant was entitled to the Claimed Commission under the Clauses. Consequent upon such failure, there were inadequate reasons given in the Brief Reasons and Reasons for rejecting the Claimed Commission. 

47.  This is sufficient for me to allow the appeal. However, for completeness, I shall also deal with the Discovery Ground.

Discovery Ground

48.  The Discovery Ground and the Enquiry/Finding and Criterion Grounds were inter-related for they all concerned the Claimed Commission. I must remind at the outset that the trial dealt with both liability and quantum issues, so the PO was obliged to assess the merits of the parties’ respective case on both issues. On such basis, relevant documents pertaining to both issues on liability and quantum should be before the PO irrespective whether they support or contradict the claimant’s case and/or the defendant’s case.

49.  Mr Shum argued that all documents relating to the sales records of business introduced/approached by the claimant (if any) were and would have been in the defendant’s possession, especially when the claimant’s services were terminated by the defendant and he could no longer access documents necessary and relevant to the issues in the case (transcript/411H-S). Mr Li fairly confirmed the relevant documents were in the possession of the defendant.

50.  Mr Shum then referred to Paragraph 10 and submitted the PO dismissed the claimant’s claim for the Claimed Commission on the sole basis that he “failed to support his claim with solid evidence”, and that “[a] substantial part of [the claimant’s] claim is purely based upon speculation” and the PO found it “difficult to rely on speculation and unsupported assertions made by the [claimant]”. Mr Shum then referred to paragraph 33 of the Reasons where the PO said “...... In my view, the Claimant’s projection or forecast of business is nothing more than speculation and without support. ...... Both the Claimant and Mr Genoud’s projections are hardly reliable ......”

51.  By the Discovery Ground, the claimant complained there were missing invoices, actual sales records and other documents relevant to the disputed issue of his entitlement or otherwise to the Claimed Commission (“Documents”) that might shed light on the calculation/quantum thereof should he establish the defendant’s liability therefor on the basis of, say, his “approach” to the Casio and Arab accounts that resulted in sales placed via the intermediary resale mechanism. Indeed, the claimant further claimed the paper trail of the defendant’s invoices to ADW, TMS and MSR for their acquisition of products would also show whether or not they were for ultimate supply to the Casio and Arab accounts, which might bolster or contradict his case on liability.

52.  Mr Shum submitted the PO should have (a) made enquiry with the defendant and sought discovery of such Documents and/or (b) explained to the claimant the procedure for seeking discovery against the defendant rather than simply dismissing the claimant’s claim for the Claimed Commission on the grounds set out in the paragraphs 37-38 above, especially so when the claimant had raised complaint at an early stage of missing/hidden Documents via letters to the PO and his statements.

53.  On the other hand, Mr Li submitted the defendant had made appropriate disclosure of documents largely on the basis of the defendant’s case, ie some invoices did not exist simply because there were never any sales. This was borne out by Mr Li’s submissions that:

(a)  the claimant’s complaint was made on the proposition that sales were actually concluded in respect of customers stated in his claim, but if no sales were actually made then no invoices could have been generated for review by the claimant;

(b)  the claimant claimed he was entitled to commission from the Clauses 2.2 and 7.2 Accounts as a result of his business dealings with 39 customers, but the defendant prepared a number of tables that showed only 3 out of the alleged 39 customers in fact had business dealings with the claimant;[24] and

(c)  the question of whether the Clauses 2.2 and 7.2 Accounts resulted in actual sales and the claimant’s commission were further explored during examination of Mr Mottet when the PO examined each customer named in the claimant’s claim in detail, and Mr Mottet insisted there was no business with them.

54.  But such discovery ignored the claimant’s case that sales were generated as a result of his “approach” to the Casio and Arab accounts even though such sales was eventually made via the middleman/intermediary resale mechanism, say, due to political reasons. The defendant disputed this by asserting the sales were to ADW, TMS and MSR (and there were admittedly such sales) that had nothing to do with the claimant, and there were no sales to the Casio and Arab accounts. Given this live debate before the PO, I find it strange the defendant could resist discovery of the Documents in relation to sales to, say, ADW, TMS and MSR by simply resting on its own case and ignoring the claimant’s case when such Documents were admittedly in the possession of the defendant. It was true the defendant listed the invoices placed by ADW, TMS and MSR [HB/754, 757-761], but there was no evidence before me actual copies were provided. Indeed, this was the subject of complaint by the claimant since the pre-trial stage (see paragraph 58(k)-(l) below), which persisted during trial, closing submissions and review application (see paragraph 59 below).

55.  But notwithstanding the non-disclosure of such Documents, it appeared the PO approached the matter on a global basis that the claimant’s estimation of the Claimed Commission was based on unreliable projection or forecast of business that was “nothing more than speculation and without support”, and he eventually relied on the actual sales figures provided by the defendant. In saying the claimant was unable to raise solid grounds of objection concerning such actual sales figures by the defendant, and in eventually rejected the claimant’s claim for the Claimed Commission, the PO was in effect criticising the claimant for not providing the evidence which the claimant did not have access and which was in the defendant’s possession.

56.  In my view, it is the duty of the PO in his active inquisitorial role to investigate whether there was crucial documentary support (if any) for matters that went to the materiality of the claimant’s complaint and the reliability of the actual sales figures provided by the defendant to ensure a fair trial, especially (a) given the nature of the claimant’s case as explained above, (b) there were admittedly invoices placed by ADW, TMS and MSR in the defendant’s possession, and (c) the claimant had time and again complained he had no access despite demands. Whilst the statutory duty to investigate is not an absolute one, the PO could not derogate from such duty if fair and just disposition of the claim for the Claimed Commission was to be ensured. Given the live dispute before the PO as to whether the ADW, TMS and MSR orders (which did exist) were in truth orders by the Casio and Arab accounts, such Documents must be relevant to the issue as to whether the claimant’s case based on the intermediary resale mechanism could be supported, and if so how the amount of Claimed Commission should properly be calculated. Discovery of such invoices and sales records was not only relevant but necessary for fair disposal of the case, and adopting by analogy the discovery principles in the High Court the PO should have exercised his discretion to order production under section 20 and to consider the same before coming to any conclusion that there was insufficient evidence to support the claimant’s case or that the claimant’s estimation was speculative and could not be supported.

57.  As explained above, the Discovery Ground was related to the Enquiry/Finding and Criterion Grounds because what seemed to have fallen from the PO in the Brief Reasons and Reasons was an acceptance that whilst the claimant was entitled to commission on all accounts “managed”, “co-managed” or “approached” by him that led to sales or future sales, such sales or future sales were limited to those made to customers of the defendant but not resales by such customers to their own customers. Thus, the PO explained in the Brief Reasons that one of the reasons why he considered the Clauses 2.2 and 7.2 Accounts speculative was the claimant’s disregard of the fact that some customers listed in such accounts were actually not the defendant’s direct customers but were only customers of the defendant’s customers. This was also echoed in paragraph 28 of the Reasons as explained above. In my view, this might have coloured the PO’s perspective on the scope of relevant discovery which unfortunately was narrower than what was necessary for just and fair disposal of the core disputed issues before him.

58.  I now turn to the matter of the “5 invoices” that the claimant claimed was missing but crucial for challenging the reliability of the defendant’s actual sales figures that the PO relied. Mr Shum reminded that the claimant had raised the issue of missing/hidden invoices even at the pre‑trial stage,[25] and then:

(a)  it appeared that at a hearing on 15 September 2014 before the PO the parties reached an understanding for the claimant to inspect the invoices (see D43 – letter from the claimant to the defendant dated 16 September 2014);

(b)  the claimant requested sight of the invoices specified in a list of accounts for the period from 1 February 2013 to 1 October 2014 that he prepared (see D43 – letter from the claimant to the defendant dated 16 September 2014);

(c)  the defendant claimed the understanding reached at the hearing on 15 September 2014 was for inspection of invoices for the period from 1 February 2013 to 31 March 2014 (and not 1 October 2014), and it also disputed the scope and extent of the inspection (see D44 – letter from the defendant to the claimant dated 22 September 2014);

(d)  the defendant wrote to the Tribunal to complain that the claimant was unable to provide “an exact list of clients and so call related companies” (see letter from the defendant to the Tribunal dated 30 September 2014);

(e)  the claimant wrote to the Tribunal to complain that (i) when he attended the defendant’s office on 4 October 2014 the defendant limited the invoices up to end of March 2014 and failed to allow physical inspection at the latter’s office, and (ii) the small quantity of invoices as alleged by the defendant for the period from February 2013 to 1 April 2014 was impossible (see C42 - letter from the claimant to the Tribunal dated 6 October 2014);

(f)  the defendant wrote to inform the Tribunal that the meeting on 4 October 2014 between the claimant and the defendant ended with the police being called, but “[the] requested client’s list with their respective turnovers and invoice numbers, will be send by post tomorrow” (see letter from the defendant to the Tribunal dated 6 October 2014);

(g)  the claimant complained about the conduct of the defendant at the inspection, eg the defendant did not cooperate and the claimant was not given invoices or audit report for inspection (see C43 – the claimant’s supplemental statement dated 22 October 2014);

(h)  the claimant claimed he only saw the defendant’s list of invoices and inspected certain invoices at the pre-trial hearing on 3 November 2014 (see C44 – letter from the claimant to the Tribunal dated 4 November 2014);

(i)  the defendant wrote to inform the Tribunal that the “report on invoicing requested last mention on 3 November 2014 for the above claim” was delayed due to business trip, but it would be ready by end of the following week (see letter from the defendant to the Tribunal dated 3 December 2014);

(j)  the claimant wrote to the Tribunal on inter alia 5 invoices which had “[double] invoice numbers” and requested “to subpoena these 5 invoices for evidence” (see C45 – letter from the claimant to the Tribunal dated 22 December 2014);

(k)  the claimant replied on various documents produced by the defendant, and complained inter alia that the defendant submitted incomplete invoice totals under Clause 2.2 that failed to include invoices from 1 February to 23 July 2013 for ADW and/or invoices for “sales to Casio entities direct in July 2013 to 31 March 2014” (see C46 – reply by claimant dated 22 December 2014 on various documents produced by the defend ant);

(l)  the claimant set out his complaints as to missing items for Clauses 2.2 and 7.2 (see C49(1) and 50(2));

(m)  the claimant complained to the PO that he still had not received quite a few of the defendant’s documents, and he requested permission to review the documents in court to identify which documents he needed so they could be photocopied (see R37 – letter from the claimant to the PO dated 5 January 2015 (mis‑stated to be 5 January 2014));

(n)  the claimant wrote to the Tribunal with copy to the defendant on (i) 5 specified invoices (which invoice numbers he observed to be duplicated during physical inspection of the invoices in court in December 2014), which he regarded as “crucial evidence” and (ii) his intention to apply for a subpoena for such invoices “at the soonest”, but to save time and cost he requested the defendant to provide such invoices before 21 January 2015 or alternatively inform the Tribunal immediately if it was unwilling to do so (so the claimant could apply for relevant subpoena sooner) (see letter from the claimant to the Tribunal with copy to the defendant dated 15 January 2015);

(o)  on 19 January 2015, the claimant applied for subpoena against Mr Mottet of the defendant to produce the aforesaid 5 invoices;

(p)  on 23 January 2015, the PO directed that “[claimant’s] application for subpoena is too late and cannot be considered as no sufficient time is available for issue of subpoena”; and

(q)  the claimant wrote to the court to state that he only just received the PO’s directions, and he explained that he had applied for the subpoena at the earliest opportunity on 19 January 2015 (see letter from the claimant to the Tribunal dated 27 January 2015).

59.  It appeared some steps had been taken pre-trial for the claimant to inspect the invoices in the possession of the defendant. But it was also plain that even at the pre-trial stage the claimant did assert there were missing invoices, and he regarded (a) at least 5 of them were “crucial evidence” for him to challenge the reliability of the defendant’s sales figures since they had duplicated invoice numbers, and (b) the defendant should include invoices from ADW and/or other agents. When the application for subpoena was declined, the claimant appeared to maintain his complaint of missing/hidden invoices at the trial hearing, in his closing submissions and at the review hearing in respect of both (a)-(b) above, and consequently claim he was unable to (i) mount a thorough attack on the reliability of the defendant’s invoice list in view of lack of access to the 5 invoices, and/or (ii) set out the fullness of his case on the Claimed Commission and had to rely on estimation. In this respect I refer to the documents/transcript references set out in paragraphs 19-21 of Mr Shum’s written submissions, which I have carefully considered but shall not repeat here.

60.  On the other hand, Mr Li argued that prior to commencement of trial the claimant was afforded the opportunity to inspect some invoices, and although the PO rejected the claimant’s application for a witness subpoena for production of 5 identified invoices that the claimant claimed to be crucial evidence that were missing, the PO raised this matter again on the 1^st day of trial on 2 February 2015 (transcript/8S-9R) when the PO reminded the claimant (who did not made “other documents request” then) that (a) the earlier application for witness subpoena was too late as there was not enough time for hearing such application before the trial, (b) the claimant could consider making an application later on during closing submissions or if/when the case was adjourned part-heard, or (c) the claimant might eventually decide such subpoena was not required. The PO also told the claimant it was for him to bring up any such application so that the claimant should not “come and tell [the PO] that you are not given a chance”.

61.  Mr Li submitted that such dialogue showed the PO had exercised his discretion to leave the ultimate decision to the claimant as to whether he wished to make any request for additional documents, but despite the PO’s reminder the claimant elected not to pursue any further application. Nevertheless, the PO still investigated into matters that related to 3 out of the 5 missing invoices during an exchange amongst the PO, Mr Mottet and the claimant in the course of the claimant’s evidence. On such basis, Mr Li submitted the PO had discharged his duty to investigate by inquiring with Mr Mottet about the actual sales, how the invoices would be generated by the defendant and the double-invoicing issue.

62.  But the PO’s approach might well have been coloured by the fact that despite the claimant’s repeated/persistent complaints, the PO remarked he could not do anything about it, saying “...... we don’t have discovery ......” (transcript/52E) and “...... we do not have discovery procedure like the High Court, unless you want to it somewhere else, that’s what you have got ......” (transcript/95I-L), and commented that he was left to “guess” and “speculate” the quantum for commission claimed and that the claimant was unable to “explain” or “substantiate” his estimate (see extracts from transcript referred to in paragraph 22 of Mr Shum’s written submissions).

63.  The PO’s observation that there was no discovery procedure at the Tribunal was erroneous in law, and might well have influenced the claimant when the trial adjourned part-heard and the matter of a subpoena for the aforesaid 5 invoices was not revisited. The 5 invoices were put forward as evidential material to attack the reliability of the defendant’s actual sales figures, and they were therefore directly relevant to the disputed issues in the case. I cannot see how the PO’s advice to the claimant to revisit the matter of seeking relevant evidence only in closing submissions or if the case was part-heard to be a fair and just approach. In any event, as Mr Li submitted, only 3 of the 5 “missing” invoices were canvassed at trial.

64.  I am not persuaded the claimant’s complaints about “missing documents” were mere abstract complaints that did not have substance. Rather, they were directed at the PO’s positive statutory duty to investigate documentary material that were directly relevant to the question of whether the claimant should receive commission on a wider basis than the Awarded Commission, and if so the quantum of such commission payable to the claimant. I find the PO (a) misunderstood his powers to order production of documents under section 20 (which were analogous to the principles applicable in High Court proceedings as explained in paragraphs 25 above) to achieve a fair outcome when the claimant had made out a case for direct relevance, and (b) failed to discharge his positive statutory duty to investigate relevant matters and order discovery of pertinent documents as part of his inquisitorial role, which led to the dismissal of the claimant’s claim for the Claimed Commission as being speculative and without solid ground when the claimant had no access to some relevant Documents.

Conclusion

65.  In the circumstances, the appeal is allowed. I grant the following orders:

(a)  the claimant’s claim for the Claimed Commission be remitted to the Tribunal for re-trial by another presiding officer;

(b)  the Balance Security paid out to the defendant pursuant to the order of the PO dated 7 September 2015 be reinstated, and the defendant do pay the same into the Tribunal within 14 days; and

(c)  costs of the trial and review before the PO be remitted to the re-trial presiding officer for determination.

66.  There is no reason why costs should not follow event. I grant a costs order nisi that the defendant shall pay the claimant costs of and occasioned by the appeal to be taxed if not agreed, and the claimant’s own costs be taxed in accordance with Legal Aid Regulations.