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X v Melvyn Kai Fan Lai Leigh & Organge Limited

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date09 January 2019
Neutral Citation[2019] HKDC 122
Year2019
Judgement NumberDCEO4/2016
Subject MatterEqual Opportunities Action
CourtDistrict Court (Hong Kong)
DCEO4B/2016 X V. MELVYN KAI FAN LAI LEIGH & ORGANGE LIMITED

DCEO 4/2016

[2019] HKDC 122

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO 4 OF 2016

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BETWEEN
X Claimant
and
MELVYN KAI FAN LAI 1st Respondent
LEIGH & ORGANGE LIMITED 2nd Respondent

----------------------------

Before: His Honour Judge Ko in Chambers (Open to Public)
Date of Hearing: 9 January 2019
Date of Decision: 9 January 2019

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DECISION

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1. This is the 1st respondent’s application to vary the costs order nisi made herein on 30 November 2018. The 2nd respondent, whose attendance has been excused, takes a neutral stance and has no comment on the application.

2. By way of background, the claimant complained in this action that she had been sexually harassed by her supervisor, the 1st respondent, whilst she was working under his supervision and that the 2nd respondent, as her employer, had failed to do what was necessary to prevent sexual harassment in the workplace.

3. By a judgment handed down on 30 November 2018, I dismissed the action after trial and made a costs order nisi in paragraph 189 of the judgment to the general effect that each party shall bear its own costs.

4. By his summons, the 1st respondent invites me to vary that order nisi and, instead, order the claimant to generally pay the 1st respondent’s costs of the whole action on a party and party basis and with certificate for counsel, to be taxed if not agreed.

5. It is common ground that the normal rule of costs following the event does not apply to these equal opportunity proceedings. Instead, section 73B(3) of the District Court Ordinance, Cap 336, provides that:-

“Each party to any proceedings in the court in the exercise of its jurisdiction under the Sex Discrimination Ordinance, Cap 480, shall bear its own costs unless the court otherwise orders on the ground that:-

(a) the proceedings were brought maliciously or frivolously;

(b) there are special circumstances which warrant an award of costs.”

6. In ER v Li Kwok Chang, Lawrence [2018] 1 HKLRD 1104, I generalised a few principles from a number of local authorities, including D v S; FD v Shek Kwok Ngai [2017] 2 HKLRD 940, Sit Ka Yin Priscilla v Equal Opportunities Commission, unreported, DCEO 11/1999, 27 October 2010, and Cano-Shearer & others v Cathay Pacific Airways Limited, unreported, DCEO 1/2001, 1 November 2002.

7. This morning, Ms Herbert for the 1st respondent and Ms Souza for the claimant each referred me to different aspects of the abovementioned local authorities as well as the overseas judgments referred to therein, such as ET Maler Limited v Robertson [1974]1 ICR 72 and Wilson v Phoenix contracting services Pty Ltd & Anor (1998) EOC 92-936. Be that as it may, they do not really dispute the principles I generalised in the ER case.

8. As I said in that case, if costs are readily ordered against unsuccessful claimants, those aggrieved by discrimination and related conduct such as sexual harassment may be deterred from seeking legal redress and the policy of the equal opportunity legislations would be frustrated. This will not be conducive to the objectives of the legislations to eliminate discrimination and to change prejudicial attitudes that may exist in our society. On the other hand, the court should be able to protect respondents from unmeritorious claims. In an attempt to strike a balance, the legislature has decided that there should generally be no order as to costs, but the court retains the power to make an order in two exceptional circumstances, namely when the proceedings were brought maliciously or frivolously, and when there are special circumstances that warrant an award. The burden is on the one who asks for costs to demonstrate his entitlement.

9. In this instance, the 1st respondent is invoking both the “frivolous limb” and the “special circumstances” limb. In that regard, there is no dispute that, first, proceedings were brought frivolously when the claimant subjectively knew that there was no substance in his or her claim and that it was bound to fail. A claim is also frivolous if, objectively considered, it is so manifestly misconceived that it can have no prospect of success. Secondly, the court is given a wide discretion under the special circumstances limb to do justice. Whilst it is impossible to list out all the circumstances in which costs may be awarded, the court should bear the rationale behind the costs arrangement in mind when determining the issue.

10. Turning to the substantive argument, it is the 1st...

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