CACV 46/2008 AND CACV 49/2008
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NOS. 46 OF 2008 AND 49 OF 2008
(ON APPEAL FROM HCA NO. 954 OF 2005)
||RAJ KUMAR MAHAJAN
||HCL TECHNOLOGIES (HONG KONG) LIMITED
||HCL TECHNOLOGIES LIMITED
Before: Hon Rogers VP and Le Pichon JA in Court
Date of Hearing: 13 November 2008
Date of Handing Down Judgment: 20 November 2008
J U D G M E N T
Hon Rogers VP:
1. I agree with the judgment of Le Pichon JA.
Hon Le Pichon JA:
2. These are appeals from orders made by Burrell J on 24 January 2008 (1) allowing the plaintiff’s appeal and restoring leave to serve the second defendant out of the jurisdiction, and (2) dismissing the third defendant’s application to discharge orders that had granted leave to serve the third defendant out of the jurisdiction. At the conclusion of the hearing judgment was reserved which we now give.
3. This is an action by the plaintiff against all three defendants to recover monies said to be due upon the termination of his employment in 2004. There is a separate cause of action against the third defendant for breach of contract and breach of warranty arising out of two oral agreements relating to the plaintiff’s bonus. The first defendant is the wholly owned Hong Kong subsidiary of the second defendant which is the holding company listed in India. The third defendant is the chairman and chief executive of the second defendant. The second defendant operates internationally, having some 34 subsidiaries worldwide. The judge considered that the issue at the heart of these interlocutory proceedings is the identity of the plaintiff’s employer.
4. The plaintiff’s claims against the defendants are to be found in the following paragraphs of Form 2:
“6. By an oral agreement reached in a meeting held in Amsterdam on 24 February 1999 (the “Amsterdam Meeting”) between the Claimant and the 3rd Defendant on behalf of the 1st Defendant (the “Revised Contract of Employment”), the Claimant was employed by the 1st Defendant as a Managing Director-Asia Pacific Region based in Hong Kong to oversee various offices of the HCL Group in the Asia Pacific Region beginning from 1 March 1999.
7. The Revised Contract of Employment was partly evidenced by:-
(a) a handwritten note prepared by the Claimant contemporaneously on 24 February 1999 (the “Amsterdam Note”);
(b) a letter dated 5 March 1999 issued to the Claimant by the HRD Head;
(c) a further letter dated 12 March 1999 issued to the Claimant by the HRD Head;
(d) an employer’s return of remuneration and pensions for the year ended 31 March 2000 filed by the 1st Defendant as employer to the Inland Revenue Department of Hong Kong.
8. As regards the Amsterdam Note pleaded in paragraph 7(a) above:-
(a) The Claimant was instructed by the 3rd Defendant to prepare the Amsterdam Note to record certain specific items that were agreed in the Amsterdam Meeting on the same day.
(b) The 3rd Defendant had gone through the Amsterdam Note with the Claimant and suggested two corrections which were incorporated manually by the Claimant in the presence of the 3rd Defendant:
(i) The posting date was revised from 1 “May” 1999 to 1 “March” 1999;
(ii) The words “till 30/6/2002” was inserted in point 5 of the Amsterdam Note.
(c) The Claimant gave 3 copies of the Amsterdam Note to the 3rd Defendant immediately on 24 February 1999.
(a) The Amsterdam Meeting was held between the Claimant and the 3rd Defendant on behalf of the 2nd and/or the 3rd Defendants.
(b) The Claimant was employed by the 2nd and/or 3rd Defendants under the Revised Contract of Employment.
(c) The Claimant was promoted and seconded by the 2nd and/or 3rd Defendants to the 1st Defendant as the Managing Director-Asia Pacific Region with effect from 1 March 1999 pursuant to the terms pleaded in paragraph 9 above.”
In short, the claim is that the first defendant or the second defendant and/or the third defendant was the plaintiff’s employer.
5. All three defendants have been served. The claim is a “Form 2” claim made in the Labour Tribunal which has been transferred to the High Court. On 13 June 2007, Master de Souza set aside the claim against the second defendant on the grounds that it did not fall within Order 11, rule 1(1)(c) and/or that there was no serious issue to be tried against the second defendant. The plaintiff appealed that decision and the appeal came before the judge together with a summons by the third defendant to discharge five orders made by other masters which, taken together, granted leave to serve the third defendant out of the jurisdiction. The judge allowed the plaintiff’s appeal from the master’s decision and dismissed the third defendant’s summons.
6. Mr Wong SC who appeared for the second and third defendants (collectively “the defendants”) challenged the judge’s decision on what he described as (1) the admission and jurisdiction point, and (2) the cause of action and no serious issue to be tried point.
The admission and jurisdiction point
7. Mr Wong SC’s submission was that the judge had made an error of law in his approach to Order 11 because he had used as his starting point the causes of action in Form 2. The basis of that submission appears to be founded on Mr Wong’s reading of Order 11, rule 1(1)(c) and Order 11, rule 4(1)(d) which provide as follows:
“ 1.-(1) … service of a writ out of the jurisdiction is permissible with the leave of the Court if in the action begun by the writ-
(c) the claim is brought against a person...