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Zhu Li v Mayer Brown Jsm (A Firm)

Judgment Cited authorities 5 Cited in Precedent Map Related
Vincent
Judgment Date07 September 2012
Year2012
Judgement NumberDCCJ977/2012
Subject MatterCivil Action
CourtDistrict Court (Hong Kong)
DCCJ977/2012 ZHU LI v. MAYER BROWN JSM (a firm)

DCCJ 977/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 977 OF 2012

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

BETWEEN
ZHU LI Plaintiff

and
MAYER BROWN JSM (a firm) Defendant
----------------------------

Before: Deputy District Judge Nancy BY Leung in Chambers (Open to Public)

Date of hearing: 28 June 2012

Date of Decision: 7 September 2012

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DECISION

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

1. This is an application by the defendant for (a) an order to strike out the Writ of Summons and the Amended Statement of Claim (hereinafter referred to as “the Writ and the Amended SOC”) under various grounds and (b) an order that the plaintiff’s action be dismissed. When the application was issued, the defendant sought to rely on Order 18 rule 19 and Order 12 rule 8 of the Rules of the District Court; and also sought a determination of a question of law under Order 14A.

2. However, at the beginning of the hearing, Miss Lisa Wong, Senior Counsel for the defendant, withdrew the applications under Order 12 rule 18 and Order 14A. As such, Miss Wong requested the court to only consider the defendant’s application for striking out and dismissal, under Order 18 rule 19 or alternatively, the inherent jurisdiction of the court.

3. As such, I proceeded to consider the application on such basis.

The Plaintiff’s Claims

4. The plaintiff appeared in person. In summary, as set out in the prayer of the Amended SOC, apart from claiming interest and costs, the plaintiff’s claims are for:

“(a) An apology;

(b) An investigation report;

(c) Damages for breach of contract (HK$593,578);

(d) Payment under Employment Ordinance (HK$350,835);

and

(e) Medical expenses for future medical treatment.”

(referred hereinafter collectively as “the plaintiff’s Claims”)

The Defendant’s Case

5. In essence, the defendant’s case is that:-

(a) the plaintiff’s claim(s) as pleaded in the Amended SOC are either (i) claims for remedies that are not known to our law to be available for the pleaded cause(s) of action or (ii) claims that fall within the exclusive jurisdiction of the Labour Tribunal, being either claims for a sum of money for breach of a contract of employment or claims for non-compliance with the Employment Ordinance; or

(b) alternatively, if and to the extent that the plaintiff’s claims are not for breach of an employment contract and/or for non-compliance with the Employment Ordinance, the Amended SOC as it is now drafted is embarrassing and should be struck out.

The Labour Tribunal’s Jurisdiction

6. The relevant parts of the Labour Tribunal Ordinance (Cap 25) state as follows:-

“Section 7:

(1) The tribunal shall have jurisdiction to inquire into, hear and determine the claims specified in the Schedule.

(2) Save as is provided in this Ordinance, no claim within the jurisdiction of the tribunal shall be actionable in any court in Hong Kong.

…...”

Schedule
(hereafter referred to as “the Schedule”)

“1. A claim for a sum of money which arises from-

(a) the breach of a term, …, of a contract of employment, whether for performance in Hong Kong or under a contract to which the Contracts for Employment Outside Hong Kong Ordinance (Cap 78) applies; (Amended 8 of 1976 s. 49; 59 of 1999 s. 3)

……………

(b) the failure of a person to comply with the provisions of the Employment Ordinance ......

……………

3. Notwithstanding paragraphs 1 and 2, the tribunal shall not have jurisdiction to hear and determine a claim for a sum of money, or otherwise in respect of a cause of action, founded in tort whether arising from a breach of contract or a breach of a duty imposed by a rule of common law or by any enactment.” (emphasis added)

7. Miss Wong submitted for the defendant that paragraph 1 of the Schedule covers claims for both liquidated and unliquidated damages and cited Citipost (Asia) Limited v Julian Robert Holliday CACV111/2004 (unreported, 8. 2.2005) in support. This submission was not challenged by the plaintiff . I agree with Miss Wong and Hon Roger VP’s views expressed in the above mentioned case, that, to interpret otherwise, it would be to read words into the statute that are not there.

8. Miss Wong further referred me to Borchert v Drymo Ltd [2010] 1 HKC 168, in support of her submission that this court has no jurisdiction to entertain claims that are within the jurisdiction of the Labour Tribunal (unless such claims are transferred to this court by the Tribunal under section 10 of the Labour Tribunal Ordinance).

9. There are provisions in the District Court Ordinance providing for transfer of certain types of cases from the District Court to the Labour Tribunal (section 73B to E of District Court Ordinance (Cap 336)), but I consider those to be inapplicable in this case. Hence, I agree with Miss Wong that transferring this action to the Labour Tribunal is not an option open to me and neither was it a course of action requested by the plaintiff.

10. I deal with the plaintiff’s Claims in turn below.

For An Apology

11. The plaintiff has not provided any authority to support her assertion that this court has jurisdiction to order an apology for the causes of action pleaded in the Amended SOC (ie breach of contract and, allegedly, tort).

12. I agree with Miss Wong that this court simply has no jurisdiction to order an apology unless provided for by statute (eg the anti-discrimination legislation or for defamation in England in the limited circumstances), and an apology is neither a remedy known for a claim for breach of contract nor a claim in tort.

For An Investigation Report

13. Similarly, the plaintiff has not submitted any authority to support the court’s jurisdiction to make the requested order to order the defendant to conduct an investigation and prepare a report thereof. Miss Wong submitted that there is a fortiori no legal basis on which the court could order an investigation report, or indeed, order the defendant to conduct an investigation. I am not satisfied that this is a remedy that this court has the power to order. I would add that I consider the proper forum for investigation of such matter should be the Law Society of Hong Kong.

For Damages For Breach of Contract

14. It is undisputed that there is a contract between the plaintiff and the defendant, but the parties disagree as to whether the contract is a contract of employment.

15. If the claim is for breach of a term(s) of an employment contract, it will fall within paragraph 1(a) of the Schedule, and hence, within the exclusive jurisdiction of the Labour Tribunal and this court has no jurisdiction to hear it. On the other hand, if the claim is for breach of a contract (other than an employment contract), the claim will be within the jurisdiction of this court.

16. Miss Wong submitted that she was not asking me to determine as a matter of fact whether the contract between the parties is one of an employment nature. Miss Wong invited me to simply look at the pleadings as they currently stand to determine what the claim is.

17. The plaintiff, on the other hand, submitted to me that I should look at all the evidence which had been adduced and then to determine if the contract is in fact a contract of employment.

18. In this regard, I agree with Miss Wong. The plaintiff’s claims are those that have been pleaded in the pleadings but nothing else, unless and until amendments are sought to make to those pleadings to introduce new claims or amend the existing claims. No such application was made nor was there any indication that the plaintiff would be seeking leave to make further amendments. It is not for the court to speculate whether there are other claims (apart from those pleaded) or whether the pleaded claims are in fact of a nature different from those set out in the pleadings. My task is to determine whether the pleaded claim of the plaintiff falls within the Labour Tribunal’s jurisdiction, but not to investigate if the claim is in fact different from that which has been pleaded or if there are claims other than those pleaded.

19. Miss Wong submitted that in the Amended SOC, the plaintiff characterizes the relationship between herself and the defendant as being found in contract and more particularly, an employment contract. Miss Wong has helpfully drawn my attention to various relevant parts of the Indorsement of Claim and the Amended SOC as follows:-

(a) In the Indorsement of Claim, it was stated that “the defendant wrongfully terminated the employment contract and…..”

(b) In the Amended SOC:-

i. the plaintiff pleads the suspension of “the employment” without contractual or legal basis;

ii. the plaintiff complains of injury to her reputation and feeling caused by the defendant by suspending “the employment”, and the “suspension from employment” being a violation by the defendant of the Employment...

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