YUEN OI YEE LISA v. HEATH CO LTD AND ANOTHER

cacv 325/2006 AND CACV 436/2006

in the high court of the

hong kong special administrative region

court of appeal

civil appeal noS. 325 of 2006 AND 436 OF 2006

(on appeal from hca NOs. 509 of 2004 and 96 of 2005)

HCA 509/2004

in the high court of the

hong kong special administrative region

court of FIRST INSTANCE

action NO. 509 of 2004

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HCA 96/2005

in the high court of the

hong kong special administrative region

court of FIRST INSTANCE

action NO. 96 of 2005

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______________________

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J U D G M E N T

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Hon Rogers VP:

1.  These were appeals by the plaintiff against orders of Lam J made on 15 August and 15 December 2006 whereby he refused the plaintiff leave to bring judicial review proceedings in one action and to join two persons namely Lai Yu Fai and Sally Chong as parties in High Court Actions 509 of 2004 and 96 of 2005.

2.  The application was made because on 4 August 2004 Tang J (as he then was) made the following order:

“	The Plaintiff be restrained from: --
	(i)	commencing any new court action or new proceedings in respect of any claims and/or causes of action pleaded in this action; and/or
	(ii)	consolidating/combining this action (or the claims or causes of action pleaded in this action) with any of the Plaintiff's other existing court action(s) or other proceedings; and/or
	(iii)	pleading any of the claims, and/or causes of action pleaded in this action in the Plaintiff's other existing court action(s) or other proceedings, save that the Plaintiff shall not be restrained by virtue of this Order to pursue her application for leave to appeal the Order made by Her Honour Judge C.B. Chan dated the 27th April 2004, which dismissed the Plaintiff's privacy action in DCCJ 5441 of 2003;”

3.  That order had been made in HCA 1108 of 2004 which was an action which the plaintiff had commenced against Sally Chong.  Not only did the judge on that occasion permanently stay the action on the basis that it had been frivolous, vexatious and an abuse of the process of the court but he discharged the defendant from all civil liabilities to the plaintiff in respect of all civil matters arising in that action.

4.  The judge had made the order because there had been a settlement and the plaintiff had been attempting to re-litigate the matters which had been the subject of a previous action that had been settled.  The history has been fully canvassed in the judgment of this court given by Tang JA (as he then was) dated 18 March 2005 in HCMP 2038 of 2004.

5.  Likewise Lam J was in the second case perfectly correct in giving his decision on the basis that:

“RPO leave is refused to add Lai Yu Fai and Sally Chong to any of the intended actions because no cause of action has been disclosed apart from attempts to canvass matters that had been decided in previous actions.”

6.  On this application Miss Yuen did not attempt to disguise the fact that by this application she was seeking to add in the proposed defendants and her former employer in order to ventilate her strongly felt grievance against them and in particular, Sally Chong and the employer.  Indeed, she sought an order to re-open HCA 1108 of 2004 or alternatively to institute a new action.  But there simply was no basis for making such application.  In those circumstances I see no basis upon which this court can interfere with or alter the decision of Lam J.

7.  In his decision of 15 August 2006, Lam J said:

“	1.	Application for RPO leave regarding intended judicial review by a letter of 26 July 2006 -
		(a)	The intended judicial review is within the scope of the RPO of 28 December 2005;
		(b)	RPO leave is refused because the intended proceedings have no merit.  There is no arguable basis for challenging the decision of the Administrative Appeals Board.  It is not clear what are the decisions of the office of Privacy Commissioner and the Commissioner of Police that the applicant wishes to challenge.  In any event, based on the dates of the decisions set out in the draft Form 86A, the applicant is out of time and there is no explanation for failure to proceed promptly.  The relief sought is also unclear.”

8.  Again in so far as the object of the Applicant’s application can be determined from the confused state of the application, it was to ventilate precisely the same grievance against his former employer and in particular Sally Chong.  The judge was correct in his decision.

9.  In the course of the hearing Miss Yuen was reminded that in accordance with Practice Direction 11.3 this court could make an order in respect of a litigant who is the subject of a restricted application or restricted proceeding order that he or she should thenceforth not be permitted to bring any appeal in respect of any decision of a judge of first instance pursuant to, relating to or in connection with the restricted application order or the restricted proceedings order unless, at the same time as giving the decision in question, the judge has granted the said litigant leave to appeal to the Court of Appeal and, unless such leave to appeal is given, the judge’s decision including his refusal to grant leave to appeal to the Court of Appeal, shall be final.  The practice direction is made under the powers conferred under sections 13(5) and 27 of the High Court Ordinance Cap. 4. 

10.  Unfortunately, it appears to me that it is appropriate to make such an order in this case.  Although, as I have already indicated, I am fully aware that the plaintiff bears a very strongly held grievance, the time has now come when the plaintiff can no longer be permitted to air her grievance repeatedly in court to the ultimate detriment of the efficient administration of justice in other cases by the delays caused by having to list the plaintiff's repeated applications.  Furthermore, the plaintiff can only incur costs which she will ultimately have to pay whilst, in the process, achieving nothing.

11.  I would therefore dismiss this appeal and make an order in terms of paragraph 16 of Practice Direction 11.3.

Hon Le Pichon JA:

12.  I agree.