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Singh Baljit v Forward & Co. Lawyers

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
JurisdictionHong Kong
Judgment Date25 August 2022
Neutral Citation[2022] HKCA 1209
Year2022
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
Judgement NumberCACV42/2022
CACV42/2022 SINGH BALJIT v. FORWARD & CO. LAWYERS

CACV 42/2022

[2022] HKCA 1209

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 42 OF 2022

(ON APPEAL FROM HCA NO 552 OF 2020)

____________

BETWEEN

SINGH BALJIT Plaintiff
(Appellant)

and
FORWARD & CO. LAWYERS Defendant
(Respondent)

____________

Before: Hon Cheung, Au and G Lam JJA in Court

Date of Hearing: 7 July 2022

Date of Judgment: 25 August 2022

_________________

J U D G M E N T

_________________


Hon G Lam JA (giving the Judgment of the Court):

1. This is an appeal by the plaintiff from the decision of Au-Yeung J (“Judge”) dated 13 January 2022[1] dismissing his appeal against the order of Master Kent Yee striking out the plaintiff’s Statement of Claim and dismissing his action.

Background

2. The plaintiff is a Hong Kong resident born in Hong Kong. He obtained an LLB degree in 2005 and an LLM degree in 2013. He was admitted as a solicitor in New South Wales, Australia in 2015. He did not take the Postgraduate Certificate in Laws course, and planned to qualify as a Hong Kong solicitor through the route of admission of overseas lawyers.

3. On 22 January 2018, he began employment as a Legal Executive with the defendant, Ms Ho Siu Fan Viola, a solicitor who practised as a sole proprietor in Hong Kong in the name of “Forward & Co. Lawyers”. On 9 March 2018, the plaintiff was registered as a Registered Foreign Lawyer with the Law Society of Hong Kong and became employed by the defendant as a Registered Foreign Lawyer. By his own resignation, on 16 November 2018 the plaintiff ended the employment, and the defendant provided a reference letter for him.

4. On 1 March 2019, the plaintiff began to be employed by the defendant again as a Registered Foreign Lawyer. On 16 October 2019, the plaintiff provided the defendant with a resignation letter and ended his employment on the same date. There is a dispute as to whether his resignation on this occasion was voluntary.

5. In his Statement of Claim, the plaintiff pleads that the defendant dismissed him and terminated the employment with immediate effect by a WhatsApp text message without any explanation, without any prior warning, and without giving him an opportunity to explain: §§13, 22, 30. The plaintiff pleads that the dismissal was not justified or lawful, that the defendant breached the implied duty of trust and confidence owed to him, and that he was justified in treating the contract as having been unlawfully breached, enabling him to claim constructive dismissal: §§14, 19, 21.

6. The plaintiff also asserts that the defendant’s act was grossly negligent, intentional, malicious, or reckless and would foreseeably cause severe harm to him, and that the defendant failed to fulfil her duty of care to act reasonably to prevent foreseeable harm to him: §§37, 38, 39.

7. The plaintiff avers that by reason of the matters pleaded, he suffered loss and damage, the quantum of which is to be assessed: §41.

8. In the prayer for relief, the plaintiff claims general damages, punitive damages, and “Actual damages”, and sets out a number of heads of damage, and in addition claims interest, costs and further or other relief.

9. It appears that the plaintiff’s grievances are in part due to the fact that an overseas lawyer admitted in a common law jurisdiction, such as the plaintiff is, requires at least two years of post-admission experience before he can apply for admission as a solicitor in Hong Kong, subject to his completing the Overseas Lawyers Qualification Examination.

10. The defendant filed a defence on 19 October 2020 (which was amended on 19 November 2020). The first point taken in the defence is that the High Court has no jurisdiction to hear the action, because of the provisions of the Labour Tribunal Ordinance (Cap 25).

11. The plaintiff filed his Reply on 3 November 2020.

12. On 7 January 2021, the defendant applied by summons for an order striking out the Statement of Claim. On 16 August 2021, Master Kent Yee heard the application and made an order striking out the Statement of Claim and dismissing the action with costs. From that decision, the plaintiff appealed to a Judge in chambers.

The decision below

13. In her decision (“Decision”), the Judge referred to her decision in the previous case of Woo Kwok Ping v The Incorporated Management Committee of Tsuen Wan Trade Association Primary School [2020] 1 HKLRD 717 for the principles for dealing with a challenge to an action on the ground that the claims fall within the exclusive jurisdiction of the Labour Tribunal (“Tribunal”).[2] In particular, she stated that where there are mixed claims, the proper approach is to look at the substance of the dispute and not the labels put in the pleadings, and the court should assess whether the other claims brought by the plaintiff are merely for “window dressing”, such that the real claim left is one that falls within the Tribunal’s exclusive jurisdiction. After describing and examining the contents of the Statement of Claim, the Judge said that it is plain that the plaintiff’s claim is based on termination of employment and that it is within the exclusive jurisdiction of the Tribunal, even if some of the damages claimed are unliquidated.[3]

14. The Judge rejected the plaintiff’s contention that his claim was a mixed claim in both employment and tort and that there were reliefs sought based on statutory provisions and foreign law and complex issues that are not suitable for adjudication by the Tribunal, for several reasons. First, the Judge noted that the prayers for relief in the pleading show that the claim is a purely monetary claim, with no non-monetary relief sought. Secondly, the plaintiff had not set out material facts supporting the phrases inserted in the pleading for apparently tortious claims. Thirdly, the matters pleaded only in the Reply could not be relied upon for salvaging the Statement of Claim. Fourthly, so far as there was a claim for harassment, the plaintiff had not pleaded the necessary acts. So far as the alleged breach of implied duty of trust and confidence was concerned, there was no plea as to how it could arise and be implied, and it was in any event based on the cause of dismissal, a matter within the exclusive jurisdiction of the Tribunal. Insofar as negligence was relied upon, the pleaded duty was incomprehensible and gave rise to no reasonable cause of action. Accordingly, the Judge concluded that there was no tort claim and even if certain terms for tort claims had been used in the pleading, there was no reasonable cause of action in tort.[4] The action fell within the exclusive jurisdiction of the Tribunal. The plaintiff’s appeal was therefore dismissed with costs.

The appeal to this court

15. The grounds of appeal put forward by the plaintiff in his Notice of Appeal filed in this court may be set out as follows:

(1) Instead of amending the Statement of Claim, which might render it difficult to read, if the Reply could cure the defects identified, the action should be allowed to proceed.

(2) “By taking into account the substance and all the matters in dispute of the whole action, not all employment disputes can possibly have non-monetary relief to exclude from the jurisdiction of the Labour Tribunal”.

(3) “By taking into account the substance and all the matters in dispute of the whole action, monetary relief bearing Tort remedies can be outside the exclusive jurisdiction of the Labour Tribunal”.

(4) “By taking into account the substance and all the matters in dispute of the whole action, monetary relief bearing Tort remedies from criminal liabilities in a civil action shall be outside the exclusive jurisdiction of the Labour Tribunal”.

(5) Jurisdictional issue with reference to the correct venue of the whole action can only be concluded subsequent to … determining the cause(s) of action”.

(6) “Labour Tribunal does not have jurisdiction to adjudicate matters concerning foreign elements”.

(7) “Labour Tribunal does not have jurisdiction to adjudicate matters concerning breach of Legal Practitioners Ordinance, Cap. 159 and Solicitors’ Practice Rules, Cap 159H in particular with criminal intense”.

(8) “Labour Tribunal does not have jurisdiction to adjudicate matters concerning breach of enactment under the Mandatory Provident Fund...

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