SIT KA YIN PRISCILLA v. EQUAL OPPORTUNITIES COMMISSION AND OTHERS

DCEO 11/1999

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO. 11 OF 1999

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REASONS FOR DECISION

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1.  This is an application by the Plaintiff to set aside the judgment given on 3 November 2008 in her absence at the trial, dismissing her action concerning acts of alleged discrimination under the Sex Discrimination Ordinance, Cap. 480 and the Disability Discrimination Ordinance, Cap. 487.  In the hearing, I allowed the Plaintiff’s application and I now give my reasons.

2.  This application is made pursuant to O. 35 r. 2 of the Rules of the District Court, Cap. 336 (“the RDC”).  The basis for the application is that the Plaintiff, having suffered from depression, was not fit to conduct the trial due to begin on 3 November 2008, but she has a viable case and will be fit to conduct the trial at a future date, this time with the benefit of legal representation. 

History of the present case

3.  The Plaintiff was employed as Director (gender) of the 1^st Defendant since September 1996.  Her employment was terminated on 25 September 1997 with immediate effect.  The Plaintiff alleges that she had been discriminated against by the Defendants on the ground of disability and sex which resulted in the termination of her employment, and so she claims for damages and other relief against the Defendants.  At the material time, the 2^nd and the 3^rd Defendants were respectively the chairman and the chief executive of the 1^st Defendant.

4.  I have already set out the history of this case in my decision given on 3 November 2008.  However, for the purpose of this application, I should perhaps set out the relevant details once again here.

5.  The Plaintiff’s alleged cause of action accrued before the termination of her employment on 25 September 1997.  The writ was issued on 24 September 1999, one day before the expiry of the arguable limitation period.  The writ was not served until September 2000, which was close to the end of the validity of the writ.  There was then delay on the part of the Plaintiff in the exchange of witness statements, and there was total inaction on the part of the Plaintiff in pursuing the action between September 2003 to September 2006.  In view of the inaction on the part of the Plaintiff, the Defendants had to issue 2 Notices of Intention to Proceed on 17 February 2003 and 30 August 2006 respectively.

6.  In the period from 1999 to 2005, the Plaintiff had engaged in various satellite litigations against the 1^st Defendant under the Personal Data (Privacy) Ordinance, Cap. 486 by making no less than 3 complaints to the Privacy Commissioner Office (“PCO”).  She also lodged no less than 3 appeals to the Administrative Appeals Board (“AAB”) against the decisions of the PCO.  All the appeals were dismissed by the AAB.

7.  The Plaintiff was previously a qualified solicitor.  Her claim had all along been handled by a firm of solicitors until 28 September 2006 when she filed a Notice to Act in Person.  There were then various interlocutory applications before the court in 2007 and 2008.

8.  The trial date on 3 November 2008, with 15 days reserved, was fixed by myself on 16 April 2008.  On 30 May 2008, I refused the Plaintiff’s application for leave to administer interrogatories and fixed a pre-trial hearing (“PTR hearing”) on 25 September 2008.

9.  On 23 September 2008, the Plaintiff sent a fax to the court.  In the said fax, the Plaintiff mentioned that she would need to seek legal advice after receiving the written reasons for my decision refusing her application for leave to administer interrogatories.  She therefore applied to adjourn the PTR hearing on 25 September 2008 and the trial date in November 2008.

10.  With the consent of both parties, the PTR hearing was adjourned to 30 September 2008 to be heard together with the Defendants’ application to expunge certain parts of the Plaintiff’s supplemental witness statement.

11.  Shortly before the PTR hearing on 30 September 2008, the Defendants received a medical certificate from the Plaintiff, stating that the Plaintiff was recommended for sick leave from 29 September to 1 October 2008 by reason of “orthopaedic condition”.  On 30 September 2008, the Plaintiff did not appear in the hearing and I therefore adjourned the PTR hearing and the Defendants’ application to expunge the witness statement to 15 October 2008.

12.  On 6 October 2008, the court received a fax from the Plaintiff enclosing a letter from a psychiatrist of the Hospital Authority, stating that the Plaintiff had been admitted to Pamela Youde Nethersole Eastern Hospital (“the Eastern Hospital”) on 3 October 2008 for management of “mood disorder”.  On 8 October 2008, the Plaintiff sent another fax to the court, mentioning that she wanted to adjourn the trial in November 2008.  On 9 October 2008, the court replied to the Plaintiff indicating that the hearing date on 15 October 2008 and the trial date do stand.  Further, if the Plaintiff had any specific application to make, the application had to be made by way of inter partes summons.

13.  On 13 October 2008, the court received another fax from the Plaintiff, stating that she was still hospitalised in the Eastern Hospital and requested to adjourn the PTR hearing and the Defendants’ application to expunge the witness statement to another date to be fixed.  On 15 October 2008, the Plaintiff did not appear in the hearing.  By that time, I did not have any detailed information about the medical condition of the Plaintiff.  I also had no idea how long that the Plaintiff would be hospitalised or whether she still wanted to have an adjournment of the trial.  Further, as the trial date was fixed well in advance and the Defendant had incurred substantial legal costs in the preparation of the trial, the court and the Defendants were entitled to know more about the medical condition of the Plaintiff.  In that hearing, I therefore made an order that the trial date do stand.  I also directed that if the Plaintiff wanted to adjourn the trial because of health reason, she should make such application on the first day of the trial with the support of detailed medical report.  Pursuant to my direction, the order made on 15 October 2008 was personally served on the Plaintiff.

14.  On 26 October 2008, the Plaintiff sent a letter to the Defendants’ solicitors, asking them to arrange for the inspection of documents after her sick leave which was extended to 10 November 2008.

15.  On 2 November 2008 at 11:34 pm, the court received another fax from the Plaintiff, enclosing a medical certificate from one Dr. Paul Lam extending her recommended sick leave to 30 November 2008.  She also applied for extension of time to file her medical report.  In the morning of 3 November 2008 at 10:40 am, the court received another fax from the Plaintiff stating that she had been admitted once again to the Eastern Hospital.

16.  At the trial date on 3 November 2008, the first question I had to consider was, therefore, whether to adjourn the trial.  It was not an easy decision.  On the one hand, I had some sketchy information which showed that the Plaintiff was suffering from some kind of illness.  On the other hand, there had been delay in the prosecution of the claim, the trial date was fixed well in advance and the Defendants had incurred substantial legal costs in the preparation of the trial.  Eventually, for the reasons given in that hearing, I determined to proceed with the trial as scheduled.  As the Plaintiff was absent and there was no evidence adduced to support her claim, the Plaintiff’s claim was then dismissed.  The Plaintiff now seeks to set aside such order.

17.  The Plaintiff’s summons for the present application was taken out on 28 November 2008 which was out of time.  A later hearing date of 16 March 2009 was requested by the Plaintiff, and the summons was only served on the Defendants on 30 January 2009.

Reasons for the Plaintiff’s absence at the trial

18.  In support of the application, the Plaintiff has filed 3 supporting affidavits: the 1^st and the 2^nd Affidavits of the Plaintiff herself and the Affirmation of Dr. Lam Tat Chung Paul.  According to the Affirmation of Dr. Lam, the Plaintiff had no history of past mental illness.  As far as the present illness of depression is concerned, the Plaintiff first sought treatment from the Accident and Emergency Department of the Eastern Hospital on 3 October 2008, complaining of having anxiety, low mood, suicidal idea, feeling of hopelessness, insomnia and inability to cope with housework.  She was then admitted to the Psychiatric Ward of the Eastern Hospital with a diagnosis of adjustment disorder.  According to the treating doctors, the precipitating cause of the sickness was the stress related to the present proceedings.  Her condition improved and she was discharged on 20 October 2008.

19.  The Plaintiff then sought treatment from Dr. Lam on 25 October 2008 with similar complaints about her symptoms.  According to Dr. Lam, the diagnosis was the same adjustment disorder.  The Plaintiff did not suffer from delusions or hallucinations, or any other symptoms which suggest a psychotic illness.  Dr. Lam issued a sick leave certificate to the Plaintiff covering the period from 27 October to 10 November 2008.  On 1 November 2008, the Plaintiff attended Dr. Lam’s clinic for follow-up treatment.  By then, the Plaintiff did not respond well with the medication prescribed by Dr. Lam, and so her medication was reduced.  Dr. Lam then issued another sick leave certificate to the Plaintiff covering the period from 11 to 30 November 2008.

20.  On 3 November 2008, which was the first day of the trial, the Plaintiff again attended the Accident and Emergency Department of the Eastern Hospital for medical treatment, and she was admitted to the Psychiatric Ward on the same day.  She complained of having anxiety, low mood and psychological distress, and her treatments included medication and psychological counselling.  The Plaintiff was discharged on 17 November 2008 with follow-up session arranged at the Psychiatric Outpatient Department.

21.  On 22 November 2008, the Plaintiff attended Dr. Lam’s clinic with similar complaints of having anxiety, depression and stress.  Medication was prescribed and sick leave certificate covering the whole of December 2008 was issued.  On 2 December 2008, the Plaintiff attended the Outpatient Department of the Eastern Hospital for follow-up treatment.

22.  In the opinion of Dr. Lam, the Plaintiff was suffering from severe psychological stress and symptoms in October to December 2008.  The stress was caused by the present proceedings and so the Plaintiff was not fit to conduct the trial by that time.  The Plaintiff attended Dr. Lam’s clinic again on 12 March 2009.  According to Dr. Lam, the Plaintiff’s condition has improved, and she feels more at ease in dealing with the present proceedings especially due to the fact that the case has now been taken over by the present legal team whom she trusts.

23.  The Plaintiff also made 2 supporting affidavits.  According to her, she started to experience depression shortly after the termination of her employment with the 1^st Defendant in 1997.  Her condition improved and she felt much better in 1999.  In or about September 2008, her symptoms reappeared, including having negative thoughts and insomnia, and her father also passed away at more or less the same time.  The Plaintiff therefore sought medical treatments as mentioned above.  During the period when she received in-patient treatment, the Plaintiff was subject to a strict regime of voluntary confinement.  With the benefit of hindsight, the Plaintiff agrees that she should have asked Dr. Lam to prepare a medical report and made a proper application to adjourn the trial date.  However, since the Plaintiff’s mind “was something of a blank during that period”, she had not done so at the relevant time.

24.  According to the Plaintiff, her condition has improved and she has not taken any medication after 10 February 2009.  In the case that the judgment is set aside, it is her intention to retain the present legal team to conduct the trial on her behalf.

25.  In the absence of contrary evidence, I have to accept the evidence of the Plaintiff and Dr. Lam in their affidavits as the truth for the purpose of the present application.

Factors to be considered in the present application

26.  The factors that should be considered by the court in setting aside a judgment after trial are succinctly set out in the case of Shocked v Goldschmidt [1998] 1 ALL ER 372:

(i)    whether a party with notice of proceedings has disregarded the opportunity of appearing and participating in the trial, he will normally be bound by the decision;

(ii)  where judgment has been given after a trial, it is the explanation for the absence of the absent party that is most important: unless the absence was not deliberate but was due to accident or mistake, the court will be unlikely to allow a rehearing;

(iii)    where the setting aside of judgment would entail a complete retrial on matters of fact which have already been investigated by the court, the application will not be granted unless there are very strong reasons for doing so;

(iv)    the court will not consider setting aside judgment regularly obtained unless the party applying enjoys real prospects of success;

(v)  delay in applying to set aside is relevant, particularly if during the period of delay the successful party has acted on the judgment, or third parties have acquired rights by reference to it;

(vi)    in considering justice between parties, the conduct of the person applying to set aside the judgment has to be considered: where he has failed to comply with orders of the court, the court will be less ready to exercise its discretion in his favour;

(vii)  a material consideration is whether the successful party would be prejudiced by the judgment being set aside, especially if he cannot be protected against the financial consequences; and

(viii)    there is a public interest in there being an end to litigation and in not having the time of the court occupied by 2 trials, particularly if neither is short.

27.  In my judgment, the application of these principles certainly favours the setting aside of the judgment.  As now shown in the affidavit evidence, the Plaintiff had a debilitating mental condition at the critical time and she was unable to attend the trial by reason of such condition.  Further, her illness fogged her judgment in October and November 2008 when she should have made a formal application to adjourn the trial with the support of a more detailed medical report.  The setting aside of the judgment would also not entail a re-trial, as the Plaintiff’s claim was dismissed at a short trial because of the lack of supporting evidence.  There has been some delay in the making of present application to set aside the judgment, but this was probably caused by the Plaintiff’s debilitating mental condition rather than a deliberate attempt to delay the proceedings.  As to the merits of the claim, the outcome of the present case depends very much on the factual evidence, and it is very difficult for the court to form a provisional view as to whether the Plaintiff’s claim is likely to fail in the case of a trial.  There may be some prejudice to the Defendants by reason of the delay, but weighing all the factors together, the Plaintiff should be allowed one last opportunity to prosecute her claim and the judgment should therefore be set aside.

28.  In Lau Kam Chuen v Lee Ching [2003] 2 HKLRD 1018, the Court of Appeal applied the principles in the Goldschmidt case in considering whether to set aside a judgment obtained by the plaintiff after trial but in the absence of the defendant.  In upholding the decision in the lower court not to set aside the judgment, the Court of Appeal held that the most important factor for this sort of application is the reason for the applicant’s absence at the trial.  In obiter, the Court of Appeal observed that the guidelines for considering whether or not to set aside a judgment entered against a party not attending trial are to be distinguished from those governing the setting aside of a judgment entered pursuant to O. 13 and O. 19 of the Rules of the High Court, Cap. 4.  In the latter context, the most important consideration is the merits of the plaintiff’s claim or the defendant’s defence.

29.  Applying such obiter, it is now clear that the Plaintiff could not attend the trial by reason of a genuine sickness.  Although the court did not have any detailed information about the Plaintiff’s condition at the time of the trial, the evidence produced by the Plaintiff now shows that she had to receive in-patient treatment in November 2008 by reason of her illness.  Further, I agree with Mr. Dykes SC, counsel for the Plaintiff, that the present application necessarily involves a consideration of the relevant principles that apply to cases where adjournments are sought on account of a party’s illness.  In Rose v Humble [1972] 1 WLR 102, R v Sevenoaks General Commissioners and IRC, ex parte Throne [1989] STC 560 and Wong Sun v Insider Dealing Tribunal [2000] 4 HKC 557, the courts have repeatedly emphasised that failing to allow an adjournment of a trial or hearing by reason of a party’s ill-health may result in injustice and denying that party of the opportunity to be heard, in particular that party may have material evidence to give at the trial or the hearing.  Hence, if the Plaintiff had produced all the existing materials and applied for an adjournment of the trial in November 2008, the court would probably, in the interest of justice and fairness to the Plaintiff, have granted the adjournment.  If the trial had to be adjourned by then, the judgment obtained by the Defendants at that trial should a fortiori be set aside.

30.  As I see it, there is another crucial factor why the judgment should be set aside.  Sex Discrimination Ordinance and Disability Discrimination Ordinance are 2 pieces of social legislations which enable certain aggrieved individuals to enforce their civil rights.  Obviously, depression or adjustment disorder falls within the meaning of “disability” under the Disability Discrimination Ordinance.  Although disallowing the Plaintiff’s request to set aside the judgment is not an act of discrimination under such Ordinance, but to deny the Plaintiff of the opportunity to pursue her claim because of her sickness at the time of the trial is, in my judgment, against the spirit of the Disability Discrimination Ordinance.  As the 1^st Defendant is the organisation entrusted with the duty of enforcing and educating the public about discrimination laws, I do not think that it would disagree with such observation.  What is most important is, therefore, that the Plaintiff was suffering from a genuine sickness at the time of the trial, and this is the main factor why the judgment should be set aside in the present case.

31.  In opposing the application, Mr. Leung, counsel for the Defendants, argues that the court, in deciding whether to set aside the judgment, has to take into account the Plaintiff’s conduct of the case in the past years and the long delay in the prosecution of the claim.  Further, if the claim is restored, such claim is liable to be struck out for want of prosecution or as an abuse of process by reason of the delay, and hence the application to set aside the judgment should not be granted.

32.  As mentioned above, the writ of summons herein was served near the end of the validity period.  There was inaction on the part of the Plaintiff in prosecuting the claim in the period from 2004 to 2006, and the Plaintiff had also caused delay in the proceedings by bringing certain unmeritorious satellite litigations against the 1^st Defendant.  Further, the memories of the witnesses may be adversely affected by the delay, and the Defendants would therefore, says Mr. Leung, suffer substantial prejudice if the court were to set aside the judgment.

33.  I accept that there was delay in the prosecution of the claim, and I also agree with Mr. Leung that, if the claim is liable to be struck out for want of prosecution or as an abuse of the process of the court, there is no point in setting aside the judgment obtained by the Defendants at the trial.  The court is also entitled to look at the overall delay from the accrual of the cause of action to the making of the present application in assessing the overall prejudice caused to the Defendants by such delay (see: Pacific Century Insurance Co. Ltd. v Li Wai Chung, unreported, DCCJ No. 5708 of  2004, decision of HH Judge H. C. Wong on 6 January 2006).

34.  Despite such observations, I do not find that the delay on the part of the Plaintiff was contumelious.  In fact, in the past 2 years when I handled this case as the judge in charge of the Equal Opportunities List, the Plaintiff had been bringing different types of interlocutory applications before the court.  With regret, most of these applications were misconceived ones, and as a result there was some delay in the overall progress of the case.  Although there is no evidence that the Plaintiff had suffered any serious depression before September 2008, I cannot quite understand why the Plaintiff, with proper legal training, could have brought all these misconceived applications before the court.  By that time, I have already suspected that the Plaintiff’s judgment in the handling of the case had somewhat been affected by her inability to cope with the pressure of the present litigation.  Hence, the past delay in the prosecution of the claim was, in my judgment, more likely than not caused by the poor judgment on the part of the Plaintiff in handling the case rather than a deliberate attempt to delay the proceedings.  The Plaintiff is well now and has shown every intention to pursue her claim, and so I do not accept that the Plaintiff’s past delay in the prosecution of the claim amounts to an abuse of the process of the court which justifies a summary dismissal of the claim.

35.    Further, I am of the view that equal opportunities cases should be treated differently from other commercial litigations.  Whereas the Plaintiff is attempting to enforce her civil right and there is evidence to show that she could not handle the pressure of litigation in the past, the Plaintiff should be given one last chance to pursue what may otherwise be a legitimate claim against the Defendants.  I agree that the Defendants would suffer some prejudice by the setting aside of the judgment, but such prejudice can be compensated by an appropriate award of costs against the Plaintiff.  The memories of the witnesses may be adversely affected by the long lapse of time.  However, in the case of the setting aside of the judgment, the trial will probably be restored in the end of this year.  As I see it, the additional delay of 1 year should not have had a great impact on the memories of the witnesses.

36.  In conclusion, as the Plaintiff was suffering from a genuine sickness which necessitated in-patient treatment, this provides a good explanation as to why she could not attend the trial in November 2008.  Taking into account the overall interest of the case and the particular nature of the Plaintiff’s claim, the court should allow the Plaintiff’s application to set aside the judgment.  I therefore extend the time for the Plaintiff to make such application out of time under O. 3 r. 5 of the RDC, and I also allow the substantive application in setting aside the judgment.

Conditions imposed in setting aside the judgment and costs

37.  Taking into account the history of this case, stringent conditions have to be imposed to ensure that there will be no more delay in the prosecution of the claim.

38.  Firstly, it is clear that, in the interest of the Plaintiff herself and the overall justice of the case, the Plaintiff should engage solicitors to handle the case on her behalf.  The pressure of litigation has already caused the Plaintiff to collapse in the past, and it is certainly undesirable to let the same thing to happen again in the future.  At this stage, the Plaintiff indicates to me that she will engage the existing legal team to represent her at the trial, and she personally undertakes that she will put in sufficient costs on account for the legal fees within 7 days.  This is the best assurance I can get from the Plaintiff.  Bearing in mind the Plaintiff’s right in the conduct of her own litigation, it is not appropriate for me to impose any other condition in this regard.

39.  Secondly, there were a number of costs orders made against the Plaintiff before the trial date in November 2008.  According to the bills of costs prepared by the Defendants’ solicitors, the total amount of those costs is about $900,000.  Giving a discount of 50%, I require the Plaintiff to pay a sum of $450,000 into court as security for those costs.  I am given to understand that the Plaintiff should be in the position to comply with such condition, and so there is no issue of stifling what may otherwise be a genuine claim by reason of the imposition of such condition.  This requirement would also ensure that the Plaintiff will be serious in pursing her claim without any further delay.

40.  Finally, I have to deal with the costs of the application to set aside the judgment and the costs of the trial in November 2008.  In this regard, I am fully aware of the provisions in ss. 73B(3) and 73C(3) of the District Court Ordinance, Cap. 336, which specify that each party to a claim for sex or disability discrimination should bear its own costs unless the court otherwise orders on the ground that: (a) the proceedings were brought maliciously or frivolously; or (b) there are special circumstances which warrant an award of costs.  In Cano-Shearer, Anne v Cathay Pacific Airways Limited, unreported, DCEO No. 1 of 2001 (decision of HH Judge Lok on 1 November 2002), I said the following in relation to such costs provisions:

“18.

The rationale for such rule is clear.  If the court always makes an order of costs against an unsuccessful plaintiff, it may discourage individuals who may have legitimate grievance in enforcing their civil rights.  On the other hand, I agree with Mr. Wong that such indulgence should not go unchecked, otherwise parties who are sued as defendants may have to face with all sorts of unmeritorious claims, and the said statutory provision would be doing more harm than good.  In particular, if the court cannot make any costs order in respect of procedural matters, the court will lose the power to control and regulate the progress of the proceedings.  Hence, apart from the case that the proceedings were brought maliciously or frivolously, the court is given wide discretion to make an order of costs if there are ‘special circumstances’ which warrant so.  Obviously, it would be very difficult for the court to list out all the special circumstances in which an order of costs should be made.  However, the court should always bear in mind the aforesaid considerations in deciding on the issue of costs in sex discrimination cases.”

41.  The Plaintiff may well have a legitimate claim in the present case.  However, taking into account the history of this case, there has been considerable delay in the prosecution of the claim on the part of the Plaintiff, and it is only because of the indulgence of the court that the Plaintiff is now given one last opportunity to pursue her claim.  In such circumstances, it would be grossly unfair to the Defendants if they are not allowed to obtain the costs of this application and the trial in November 2008.  In fact, Mr. Dykes, very fairly, does not seek to argue otherwise.  Hence, the Defendants will get such costs.

42.  Finally, I would like to express my gratitude to all the counsel for the assistance that they have rendered to this court.