CHEUNG KIN CHUNG v. LABOUR TRIBUNAL

CACV 249/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 249 OF 2008

(ON APPEAL FROM HCAL NO. 65 OF 2008)

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J U D G M E N T

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Hon Rogers VP:

1.  I agree with the judgment of Le Pichon JA.

Hon Le Pichon JA:

2.  This is an appeal from an order of Reyes J dated 25 August 2008 refusing the applicant leave to apply judicial review.  At the conclusion of the hearing judgment was reserved which we now give.

Background

3.  In March 2008, about four years after the applicant ceased working for the Home Affairs Department, he filed a claim in the Labour Tribunal for damages for breach of contract.  The matter came before the presiding officer, Mr Simon Lo on 8 April 2008.  The presiding officer made an order allowing the applicant to withdraw all claims against the defendant, with no order as to costs.

4.  The applicant applied for leave to judicially review the order made by the presiding officer.  The applicant’s ground was that he was denied natural justice in that he was bullied into withdrawing his application before the Labour Tribunal and that, but for that bullying, he would not have withdrawn his application.

5.  The application for leave to apply for judicial review first came before the judge on 16 July 2008.  The judge intimated at the hearing that the order made by the presiding officer did not appear to be amenable to judicial review, that the applicant could consider three options, namely, (1) to restore his application in the Labour Tribunal; (2) to apply for a review of the hearing of 8 April 2008; or (3) to seek leave to appeal to a judge if a point of law was involved, for example, that the applicant was pressured into withdrawing his application. The judge made no order on the application but gave liberty to apply.

6.  The applicant came before the judge again on 25 August 2008 and renewed his application for leave to apply for judicial review.  This appeal is from the judge’s refusal to grant leave.

The appeal

7.  The judge refused leave on the basis that there was no decision before him that was susceptible to judicial review.  If the applicant had been bullied into withdrawing his application, then the remedy would be for him to restore his application in the Labour Tribunal.

8.  In my view, the judge’s reason for refusing leave is unassailable.  Judicial review is a remedy of last resort and is not appropriate where alternative remedies are available.  Where a claim is withdrawn with leave, there is no bar to the claimant lodging another claim should he see fit.  The applicant is therefore not precluded from filing another claim in the Labour Tribunal, although there would be costs implications should his claim ultimately prove to be unsuccessful.

9.  Since the hearing of this appeal, this court has had the benefit of obtaining and reading the English translation of the transcript of the hearing before the presiding officer.  On any objective reading, it is clear that the presiding officer was concerned that the applicant, having been refused legal aid on the basis that he did not have sufficient grounds, would have to pay costs which could run into thousands of dollars in the event of his losing his case.  The fact that the applicant was unemployed heightened that concern.

10.  The applicant’s case against the Hong Kong Government was that he had been coerced into signing a resignation letter some four years earlier.  He had been earning $7,000 at the time.  The presiding officer did not consider that the applicant had much of a case.  The applicant had no witnesses other than himself to testify on the issue of coercion.  The presiding officer sought to give the applicant an opportunity to seek advice from the union representatives and, if the advice proved to be positive, to proceed with his claim.  An adverse costs order was one which the applicant could ill-afford and the course taken by the presiding officer effectively shielded the applicant from such an order.

11.  After giving directions to the defendant’s representatives for the filing of witness statements, the presiding officer proposed that the matter be adjourned to 21 May when the applicant raised the possibility of an out-of-court settlement.

12.  The following interchange then took place between the presiding officer and the applicant:

“ Court:	This is public funds, Mr. Cheung, you understand?  These are the tax payers money, Mr. Cheung, you may consider withdrawing the case for the time being and you can file a claim with the Labour Tribunal against the other party after you have sought advice from the unions provided that the unions are of the view that you have a chance to win.  I can give you one last chance to consult the unions, to ask for opinions.  If the unions really think that you have a chance to win, you file a claim – file a claim again.  You have already waited for 4 years, never mind waiting for one or two months more.  You only make a decision after you have seen the union leaders, let the unions explain to you.  It’s better than wasting several thousand dollars in paying costs for nothing.
Claimant:	Okay, okay, fine.
Court:	So you withdraw the claim for the time being, is it alright?
Claimant:	Withdraw it for the time being.
Court:	So that you can seek opinions from the unions, alright?
Claimant:	But afterwards, I can again…
Court:	If you withdraw the claim today, the court will not order you to pay today’s costs, understood?
Claimant:	In that case…
Court:	The court has the discretion to not order you to pay today’s costs.  The hearing can be resumed after you have sought opinions from the unions if the unions think that you really can win this case.
Claimant:	For the formalities about resuming the hearing…
Court:	You go to the tribunal officer to file the claim again.
Claimant:	See the tribunal officers again, that is going through the usual procedure?
Court:	That’s right.
Claimant:	Okay, okay.
Court:	Madam Lee, the other party agrees to withdraw the claim, the court has no order as to costs, well, do you agree?
Defendant’s Representative:	Agree.
Court:	According to the legislation, the other party has a time bar of 6 years to file a claim, understood?  Counting from the day he left employment.  If any union thinks that he has a chance to win, he might claim against your department again within 6 years, understood?
Defendant’s Representative:	Understood.
Court:	When it happens, the court will make new arrangements for a trial date, understood?
Defendant’s Representative:	Understood.
Court:	Mr. Cheung, you agree to withdraw the claim, right?
Claimant:	Yes.

13.  While it is clear that it is still open to the applicant to file another claim in the Labour Tribunal, it would be in the applicant’s interest to seek legal advice as to the merits of his claim before so doing and to desist from filing another application unless he is advised that he has a claim that has good prospects of success.  He should understand that he would be exposing himself to an adverse costs order should any new claim he chooses to file fail.

14.  For the reasons stated, I would dismiss the appeal.

Hon Rogers VP:

15.  This appeal will therefore be dismissed.