Cheng Wing Fu, Andy v. Shamson Zeall & Co Ltd and Another

DCCJ14033/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 14033 OF 2000

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D E C I S I O N

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1. The Defendant in this case takes out a summons to apply to this court to strike out the Plaintiff's action.

2. The Plaintiff by a writ dated 21 September 2000 sought to recover from the Defendant a certain sum of money being commission alleged to be due and owing to the Plaintiff arising out of employment contract.

3. The Plaintiff concedes that the Plaintiff's action falls within the schedule of claims to be heard and tried by the Labour Tribunal.

4. The issue in this summons is whether the District Court might have jurisdiction to try this matter despite the amendment made to the Labour Tribunal Ordinance on 19 November 1999 which took away the 12 month limitation period within which the relevant action should have been brought before the Labour Tribunal.

5. The main argument of the Plaintiff is that the right of the Plaintiff to start the action in the District Court should not be affected by the amendment, but having heard the Plaintiff's counsel's submission and the cases he referred me to, I am not persuaded that this is the correct interpretation of the law.

6. It is all clear that since the amendment of the Labour Tribunal Ordinance in November 1999, that removed the 12 month limitation on the jurisdiction of the Labour Tribunal. The Labour Tribunal has the jurisdiction to deal with all labour disputes within the schedule subject to the limitation of cause of action.

7. If the Plaintiff decided to take out an action after the amendment, in my judgment, it would be governed by the amendment. It certainly affects the right of an litigant, like the Plaintiff in this case, to take the matter to other court, but in my view, he has got no one to blame but himself.

8. In my judgment, he should have taken the matter to the Labour Tribunal instead of the District Court and I come to the conclusion that the District Court has no jurisdiction to deal with the Plaintiff's action in light of section 7 of the Labour Tribunal Ordinance which says:

"The Tribunal has jurisdiction to inquire into, hear and determine a claim specified in the schedule. No claim within the jurisdiction of the Tribunal shall be actionable in any court in Hong Kong."

9. As I have said, the Plaintiff should have started the action in the Labour Tribunal. It will be a matter for him to persuade the presiding officer to have the case transferred to other courts to be dealt with perhaps on grounds of complexity, but this will be a matter for the Tribunal itself.

10. My decision is the Plaintiff's action be struck out.

11. The Defendant asks for costs be to the Defendant on an indemnity basis. Regarding the principle of awarding costs on an indemnity basis, the well-known case is Choy Yee-chung v Bon Star Development Limited(?) [1997] HKLRD 1327, which summarised the law as follows:

"A taxation of the successful party's costs on an indemnity basis could properly be ordered where the proceedings were scandalous or vexatious or had been initiated or prosecuted maliciously or for an ulterior motive or in an oppressive manner. The circumstances in which an indemnity award might properly be made were not restricted to circumstances such as those described."

12. In another case M & R Marking Systems Incorporation v Tse Mee-shuen, Wilson & Others HKA 1598 of 2001, her Honourable Justice Chu dismissed the appeal in which the Plaintiff asked for costs. She came to the conclusion that it was an abuse of process but on the evidence available she could not say that this was a deliberate abuse of the court process. There, she refused to award the costs on an indemnity basis.

13. In this case, I conclude that it is only a different interpretation of the law by the parties and therefore I refuse to grant costs on an indemnity basis.

(Submissions on costs of summonses)

14. Costs of this action be to the 1st and 2nd Defendants on a party and party basis.

(Submissions re certificate for counsel)

15. The matter in this summons, in my view, does not involve any complex issue and I refuse the application by the Defendant's counsel for a certificate for counsel.

(Submissions on costs of summonses)

16. As for the other two summonses, the result of it followed directly from my decision on the first summons. I therefore order in terms for the two summonses.

(Submissions)

17. Order in terms as per the third summons and costs of this application be to the 1st and 2nd Defendants.