SURYANI v. CHAN TUNG CHI

SURYANI v. CHAN TUNG CHI

Although the Presiding Officer applied an incorrect restrictive formulation of the test from O'Toole, on fresh exercise of the discretion the court concluded that preserving a level playing field and the claimant's demonstrated ability to present her case (with interpreter and lay assistance available) outweighed the claimant's asserted vulnerabilities; accordingly leave for Mr Baker, a legally trained lay person, to represent the claimant in the Labour Tribunal was refused and the appeal was dismissed.

Citation
SURYANI v. CHAN TUNG CHI
Parties
Claimant/appellant: SURYANI; Defendant/respondent: CHAN TUNG CHI
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
13 November 2012
Case Number
HCLA3/2012
Procedural Posture
Labour Tribunal Appeal (court of First Instance) / Appeal Heard and Decided (hearing 8 Oct 2012; Reasons 13 Nov 2012)
Outcome
Appeal dismissed; Presiding Officer's decision refusing leave for Mr Joshua Baker to represent the claimant in the Labour Tribunal upheld on fresh exercise of discretion
Legal Topics
Right of Audience, Lay Representation, Discretion to Allow Non‑lawyer Advocate, Labour Tribunal Ordinance S23, Transfer of Proceedings
Source Language
EN
Labour Law Civil Procedure Access to Justice Right of Audience Lay Representation Discretion to Allow Non‑lawyer Advocate Labour Tribunal Ordinance S23 Transfer of Proceedings

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Parties

SURYANI

Claimant/appellant

CHAN TUNG CHI

Defendant/respondent

Procedural Posture

Labour Tribunal Appeal (court of First Instance) / Appeal Heard and Decided (hearing 8 Oct 2012; Reasons 13 Nov 2012)

Legal Issues

  1. 1 Whether the Labour Tribunal/Presiding Officer erred in refusing leave for a non‑lawyer (Mr Joshua Baker) to represent the claimant
  2. 2 What is the correct legal test for exercising the discretion to allow lay representation in the Labour Tribunal
  3. 3 Whether the claimant was so vulnerable or prejudiced that allowing Mr Baker was necessary for a fair trial

Ratio Decidendi

Although the Presiding Officer applied an incorrect restrictive formulation of the test from O'Toole, on fresh exercise of the discretion the court concluded that preserving a level playing field and the claimant's demonstrated ability to present her case (with interpreter and lay assistance available) outweighed the claimant's asserted vulnerabilities; accordingly leave for Mr Baker, a legally trained lay person, to represent the claimant in the Labour Tribunal was refused and the appeal was dismissed.

Court Disposition

Appeal dismissed; Presiding Officer's decision refusing leave for Mr Joshua Baker to represent the claimant in the Labour Tribunal upheld on fresh exercise of discretion

Orders

  • Appeal dismissed
  • Presiding Officer's refusal dated 6 February 2012 to allow Mr Joshua Baker to represent the claimant upheld