MALLORCA JOENALYN DOMINGO v. NG MEI SHUEN

MALLORCA JOENALYN DOMINGO v. NG MEI SHUEN

The Presiding Officer erred in law and in the exercise of discretion by failing to consider the factors in PD 29 paragraph 5 and to balance prejudice between parties, by applying an unduly restrictive test for allowing representation under s23, and by striking out the claimant's unsettled claims without first exploring alternatives such as remittal or adjournment; appeal allowed, order of 30 March 2017 set aside, claims restored, and VCF and representation applications remitted to the Labour Tribunal to be reheard by a different presiding officer.

Citation
[2018] HKCFI 1642
Parties
Claimant (appellant): Mallorca Joenalyn Domingo; Defendant (respondent): Ng Mei Shuen
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
26 July 2018
Case Number
HCLA8/2017
Procedural Posture
Labour Tribunal Appeal / Appeal Adjudication in Court of First Instance
Outcome
Appeal allowed; order dated 30 March 2017 set aside; claimant's Labour Tribunal claims LBTC 3464 of 2016 restored; VCF and representation applications remitted to the Tribunal to be reheard before another presiding officer; costs of appeal and leave application to be costs in the cause of the claimant's claim.
Legal Topics
Video Conferencing (vcf) Application, Representation by Trade Union Officer Under S23, Strike Out for Non Appearance Under S20 a, Practice Direction 29 (technology Court), Case Management and Balance of Prejudice, Remittal to Tribunal
Source Language
EN
Labour Law Civil Procedure Evidence Access to Justice Technology Assisted Litigation Video Conferencing (vcf) Application Representation by Trade Union Officer Under S23 Strike Out for Non Appearance Under S20 a +3 more

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Parties

Mallorca Joenalyn Domingo

Claimant (appellant)

Ng Mei Shuen

Defendant (respondent)

Procedural Posture

Labour Tribunal Appeal / Appeal Adjudication in Court of First Instance

Legal Issues

  1. 1 Whether Tribunal erred in refusing an application to give evidence by video conferencing (VCF) under PD 29
  2. 2 Whether Tribunal erred in refusing representation by an office bearer of a registered trade union under s23 of the Labour Tribunal Ordinance
  3. 3 Whether it was lawful to strike out the claimant's unsettled claims for non-appearance under s20A without further inquiry or alternative measures

Ratio Decidendi

The Presiding Officer erred in law and in the exercise of discretion by failing to consider the factors in PD 29 paragraph 5 and to balance prejudice between parties, by applying an unduly restrictive test for allowing representation under s23, and by striking out the claimant's unsettled claims without first exploring alternatives such as remittal or adjournment; appeal allowed, order of 30 March 2017 set aside, claims restored, and VCF and representation applications remitted to the Labour Tribunal to be reheard by a different presiding officer.

Court Disposition

Appeal allowed; order dated 30 March 2017 set aside; claimant's Labour Tribunal claims LBTC 3464 of 2016 restored; VCF and representation applications remitted to the Tribunal to be reheard before another presiding officer; costs of appeal and leave application to be costs in the cause of the claimant's claim.

Orders

  • Appeal allowed
  • Order of Presiding Officer dated 30 March 2017 set aside