HAROLD WILLIAH NEWNHAM FYNN v. ATTORNEY GENERAL

1990, No. A3562

IN THE SUPREME COURT OF HONG KONG

(CIVIL JURISDICTION)

HIGH COURT

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JUDGMENT

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1. This is an appeal of the Decision by Master O'Donnell who ordered that the action be struck out as disclosing no cause of action.

2. As the application involves matters of public interest I have decided to deliver this judgment in open court.

3. The Plaintiff who is a Police Research officer is suing the Hong Kong Government for a breach of his contract of employment. He is also making the claims in the statement of claim on behalf of his colleagues who find themselves in a similar predicament.

4. Put very simply the Plaintiff's claim is that when he was employed by the Hong Kong Government it was represented to him that his remuneration would be equated with the remuneration payable to a Superintendent of Police. In this connection, the terms of employment provided for an incremental scale. At the lower end of the scale the salary was the same as the salary payable to a Chief Inspector of Police and the scale increased to the same level as is payable to a Superintendent of Police.

5. Initially, the Plaintiff's salary was the same as above described. However, as a result of a survey which was undertaken, a decision was made to provide for a separate pay scale for members of the Disciplined Services. This was brought into effect on the 1st April 1988. Unfortunately, the Plaintiff and his colleagues were deemed to be holding civil jobs in the R.H.K.P.F. and were not included on the new pay scale. The salary payable under the new scale was higher than the salary he received under the old scale - hence the present action.

6. Mr. McCoy for the Plaintiff advised me that although Master O'Donnell did not give written reasons for his decision, one of his reasons allowing the Defendant's application was that he considered that the Plaintiff should have sought relief by way of judicial review rather than by way of a writ of summons.

7. To ascertain the answer to this question it is necessary to establish whether the right being pursued is of a private or a public nature.

8. Mr. McCoy was able to refer me to a case which was almost entirely relevant to this question which had recently been decided by the Court of Appeal. It was the case of McLaren v. Home Office (1990 COD 257). Lord Justice Dillon had this to say at p. 257:-

 

"A statutory corporation, such as a nationalised industry or a health authority or for that matter a local authority, has ... power to enter into a contractual relationship by a contract of service with an officer or staff whom it may engage, and in relation to prison officers the Home Office must be in the same position; the exercise of a statutory power to appoint staff is free from restriction inherent in an exercise of the Prerogative ...[T]he question  whether a public body having power to enter into a contract of service with a particular individual has or has not done so in a particular case must necessarily be a question of private, and not of public law. The function discharged by prison officers is of great importance to the public, but so is that of doctors and nursing staff under the National Health Service, and their appointments are a matter of private law - R. v. East Berkshire Health Authority, exp. Walsh."

I have no doubt that this is a correct statement of the law and that the Plaintiff was right in commencing this action by writ rather than seeking a judicial review

9. This then leads to the next question which is whether the Plaintiff is able to demonstrate that he and his colleagues do have contracts of employment with the Hong Kong Government.

10. This question was considered by Roberts C.J. in Lam Yuk Ming and Ors v. A.G. (1980 HKLR 815). At p. 828 he said:-

11. For the Plaintiff to succeed in the litigation he will need to demonstrate that it is not open to the Hong Kong Government to unilaterally chance the terms of the contract of employment.  There seems to be little doubt that there is nothing to prevent the Government from effecting changes and modifications to the various regulations relating to the employment. However, it is doubtful whether a basic alteration could be made by the Government unilaterally such as changing the basis upon which the employee is remunerated. Roberts C.J. deals with this problem at p. 830 of his judgment:-

"It is not unusual for contracts to contain some terms which can be altered at the option of one party only for example, many leases allow for an increase of rent at the option of the landlord alone. There is thus no objection in principle to a provision in a contract whereby one party can alter some of its conditions without agreement, so long as this overriding provision was within the terms of the main contract which he entered. With hesitation, we conclude that that principle is applicable also when any term is capable of unilateral variation; and that such a clause does not destroy the contractual relationship between the Crown and public officers; however vulnerable the latter may be as a result. At least public officers can enforce the terms of the contract; so long as they are in force."

12. For the Defendant to succeed in a strike out application he must show that the Plaintiff has no prospect whatever of success in the litigation. I have only dealt in the briefest outline with the issues which will arise in this case. It is, however, evident to me that it is by no means certain that the Plaintiff will not succeed in his claim. Certainly a case has not been made out to justify the action being dismissed as an abuse of the process of the court.

13. The final matter I have to deal with is the application under Order 15 rule 12.  Miss Cheng for the Defendant contended that the Plaintiff should not be entitled to proceed by way of class action and represent his colleagues interests. She placed heavy reliance upon Markt & Co. Ltd. v. Knight Steamship Co. Ltd. 1910 2KB 1021 in support of her submission. with respect I do not think that she was right. The relevant principals have been helpfully set out by Vinelott J. in Prudential Assurance Co. Ltd. v. Newman Industries Ltd. 1981 1 Ch. 229. The headnote to the case conveniently encapsulates the circumstances where a Plaintiff may represent the interests of other parties. It reads: -

"Held, (1) that the court had jurisdiction to entertain a representative action brought by a plaintiff suing on behalf of himself and all other members of a class where each member had a separate cause of action in tort provided (i) that the relief claimed in the representative action could not have the effect that it might confer a right of action on a member of the class which the member could not have asserted in a separate action or to bar a defence which might otherwise have been available to the defendant in a separate action, (ii) that there was an "interest" shared by all members of the class represented, and (iii) that it was for the benefit of the class that the plaintiff be permitted to sue in a representative capacity and, for the purpose of condition (iii), the court had to be satisfied that the issues common to every member of the class would be decided after full discovery and in the light of all the evidence capable of being adduced in favour of the claim (post, pp. 251H-252B, 254F-255E).

14. Although Vinelott, J. was dealing with a case involving a tort I can see no reason why the principles being propounded should not be equally applicable to a contractual situation.

15. I accept that on the material which is presently available the Plaintiff should not encounter any difficulty in meeting the requirements which are referred to by Vinelott, J. I was informed by Mr. McCoy that all of the Plaintiff's' colleagues who share his dilemma have duly authorised him to represent their interests'. I am not aware of any disparity in their situation, such as to render a class action to be impracticable.

16. For the reasons I have given I am satisfied that Master O'Donnell should have dismissed the Defendant's application. Accordingly, this appeal succeeds. The Plaintiff will have his costs here and below.