LEUNG MUK LAN v. COUNTRY CLUB PUBLISHING CO. LTD.

HCMP 4851/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

HCMP NO. 4851 OF 1998

(on an intended review from SCTC No. 026588 of 1988)

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J U D G M E N T

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Liu, J.A.:

The Acting Principal Adjudicator of the Small Claims Tribunal ordered a transfer of the applicant's claims to the Court of First Instance. The applicant feels aggrieved and this is her application for a review.

2. Mr Nattrass, a member of a solicitors' firm, was granted leave to appear for the defendant company before the Small Claims Tribunal. It might not be appropriate to grant a right of audience to a member of a solicitors firm, albeit not a qualified solicitor, particularly when it was complained that Mr Nattrass' firm and he himself were professionally involved with the defendant company. However, no prejudice is shown to have arisen from the attendance of Mr Nattrass and this appeal may be resolved on the issue of transfer alone.

3. It is suggested by the applicant that the amounts she claimed should be ordered to be paid into court, but that is a question, if raised, to be decided by the Court of First Instance.

4. I return then to the issue of transfer, which the applicant invites this court to review. In her application to the Small Claims Tribunal, the applicant claimed over $10,000 on two cheques, both dated June 1997. The defendant company objected to the hearing of the applicant's claims in the Small Claims Tribunal on the ground that her claims could be more conveniently heard in the Court of First Instance. The applicant claims before us that the cheques before the Small Claims Tribunal are distinct from the matters litigated in the Court of First Instance and in three different District Court actions between the same parties.

5. In its defence in the Small Claims Tribunal, the defendant company denied its indebtedness in respect of the amounts on the said two cheques. It was further claimed by the defendant company that at a meeting held in November 1996 between the applicant and one Spencer Robinson, a director of the defendant, the applicant agreed not to present cheques of the defendant company pre-signed before the date of the meeting. It is the defendant's case that the said cheques were pre-signed before November 1996, although they were both dated June 1997. The applicant was therefore said to have agreed not to present the said cheques.

6. The defendant company disclosed to the Acting Principal Adjudicator that it was making applications to have the actions in the Court of First Instance and the District Courts consolidated and that the many issues between the applicant and the defendant company, including the two said cheques should be litigated at the same time. So, the questions could only be two: Did the Acting Principal Adjudicator of the Small Claims Tribunal have jurisdiction to make the transfer order? Was the Tribunal's discretion to transfer properly exercised? The Acting Principal Adjudicator clearly had jurisdiction to make the order for transfer. In order to avoid duplicating court proceedings, it would appear that the various disputes between the applicant and the defendant company should best be resolved all in one court. In the circumstances, there was material upon which the Principal Adjudicator could properly exercise his discretion to transfer, and the exercise of the Acting Principal Adjudicator's discretion has not been shown to be clearly wrong. The answer to the two crucial questions must be "Yes, there was jurisdiction to make the transfer" and "No, the discretion to transfer the applicant's claims to the Court of First Instance was not improperly exercised". For these reasons, this court cannot come to the rescue of the applicant.

7. Her application for a review must be, therefore, denied. I would dismiss it.

Nazareth, V.-P.:

8. I would also dismiss the application.

9. The Small Claims Tribunal provides a particular useful means for the adjudication of small claims. Its speedy, simple and informal procedures, and the exclusion of legal representation, mean that litigants can act in person and not least be spared the possibility of unaffordable costs of legal representation.

10. I have no doubt that the provision of these benefits was among the purposes of the Small Claims Tribunal Ordinance (Cap. 338) enacted in 1976. But these benefits are apt to be lost when a case is transferred to the District Court and particularly the Court of First Instance. Plainly, therefore, notwithstanding that the power to transfer is discretionary, such transfer should not be made without some good and sufficient reason, as this Court has said before; see, for example, Ho Siu-mei v Solution House Ltd, Small Claims Appeal No. 5 of 1997. But quite apart from appellate courts being slow to interfere with the discretion of trial courts, here plainly there was not merely some good and sufficient reason but compelling reasons to transfer the applicant's claim to the High Court as Liu JA has explained.

11. I accordingly have no hesitation in reaching the conclusion that the application for review should be dismissed.

12. I would add one thing more. The adjudicator's reasons, which we have just received, are of obvious assistance. Such reasons are not always provided. Nor apparently are they required to be provided. Perhaps the scheme of things is that if required, reasons will be sought by the master when he gives directions under O79 r1 of the High Court Rules. If that is so, appropriate directions should be given as early as possible. In any case, if adjudicating officers receive any indication that a review might be sought, they may think it proper to record their reasons immediately.

Chan, CJHC :

13. I agree.

14. Having heard the applicant, I must say I have every sympathy for her. She lodged a claim in the Labour Tribunal for what she considered to be her lawful employment rights but on the defence advanced by the respondent, that claim was transferred to the Court of First Instance. She then lodged a claim in the Small Claims Tribunal for what she considered to be a simple debt, but on the respondent's same defence, her claim was also transferred to the Court of First Instance.

15. However, much as I sympathize with the applicant, I cannot say that the Acting Principal Adjudicator was plainly wrong in the exercise of his discretion. The respondent's defence has yet to be tested. If the matters in these cases are related, as the respondent say they are, then it would be convenient to have these cases heard together in the Court of First Instance. It may be true, as the applicant says, that the respondent is engaging delaying tactics and that at the end of the day even if she wins in the Court of First Instance, it is likely that she will not recover anything. However, it would seem that the respondent cannot be criticised for applying for the case before the Small Claims Tribunal to be transferred to the Court of First Instance.

16. For the reasons given by my Lords, I would also dismiss the application.

17. I would like to add one comment on the Acting Principal Adjudicator's ruling to permit Mr Nattrass who is an employee of a solicitors firm to represent the respondent in the Small Claims Tribunal. I am not persuaded that the Adjudicator should, for the reasons which he gave, grant such permission. Speaking personally, I do not think that those reasons given by the Adjudicator are sufficiently material.