CATHAY PACIFIC AIRWAYS LTD. v. CATHAY PACIFIC AIRWAYS FLIGHT ATTENDANTS UNION

IN THE COURT OF APPEAL

1996, No. 156
(Civil)

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J U D G M E N T

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Ching, J.A.:

1. This is an appeal against the decision of a Judge in which she upheld a decision of the Master not to order discovery of three classes of documents numbered 4, 7 and 8 in a Schedule to a summons dated 21st October, 1995. It is a summons in an action by which the Plaintiff employer seeks to recover possession of and mean profits for the occupation of premises which it has allowed the Defendant Flight Attendants Union to occupy free of charge for many years. It is the Plaintiff's case that the Defendant is a mere licencee and that its licence has been revoked upon reasonable notice. The Defendant's case is that it is in occupation under what is said to be "an oral agreement evidenced in writing" and that in any event the Plaintiff is estopped, as it is put, from denying that the Defendant is not entitled to occupy.

2. This appeal is restricted to the documents in subparagraph (2) of item 4, subparagraph (1) of item 7 and item 8 of the Schedule. The Judge below held that these documents were irrelevant to any issue between the parties or to any avenue of enquiry to which their contents might lead and further held that even if she had been minded otherwise she would not have ordered discovery since discovery would not have been necessary for disposing fairly of the matter or for saving costs.

3. The documents in subparagraph 2 of item 4 of the Schedule are,

"All documents in relation to Cathay asking the AOA to move their office."

The AOA was and is the Aircrew Officers' Association which had previously also occupied premises supplied by the Plaintiff. The Judge below pointed out that the position of that Association has nothing to do with the right asserted by the Plaintiff against the Defendant or with the defences raised by the Defendant. We are quite sure that she is correct. The rights between the parties in the present case must depend upon the facts as they were between them and not on the facts as between the Plaintiff and another party.

4. The documents in subparagraph (1) of item 7 of the Schedule are,

"All documents, including minutes of meetings held by Cathay's management and memos etc. exchanged between individuals in Cathay's management, concerning the review of Cathay's policy regarding union accommodation."

The Judge below held that the Plaintiff's policy as to union accommodation was again irrelevant on the issues as pleaded. Once more we agree with her. First, the request is so wide that it would cover the Plaintiff's policy in relation to all or any other union's staff within its employ as opposed to the Defendant alone. Secondly, it relates to documents reviewing that policy or those policies. The request as it now stands is simply fishing.

5. The documents in item 8 of the Schedule are,

"Cathay's internal documents, e.g. letters, newsletters, and internal memos regarding Cathay's position on unionisation of its flight attendants, in particular:

(1) at the time the Cathay Pacific Cabin Attendants' Association became a union [the FAU] in 1975;

(2) which led to the paragraph on full union recognition at p.9 of the 1987 Agreement and the 2 letters both dated 18/7/88 from Cathay to Ngan."

The Cathay Pacific Cabin Attendants' Association was the predecessor of the Defendant. The Judge below held that these documents were plainly even more irrelevant than the Plaintiff's review of policy regarding union accommodation. We again agree with her. Recognition of unions must surely be very different from facts upon which a licence or an estoppel can arise.

6. We see no merit in this appeal. We would agree further that the discovery sought would not be necessary for disposing fairly of the matter or for saving costs. We dismiss this appeal, cost to the Respondent in any event.