Small Claims Tribunal (Amendment) Bill 1999

Amend the Small Claims Tribunal Ordinance.

Enacted by the Legislative Council.

1. Short title and commencement

(1) This Ordinance may be cited as the Small Claims Tribunal (Amendment) Ordinance 1999.

(2) This Ordinance shall come into operation on a day to be appointed by the Director of Administration by notice in the Gazette.

2. Interpretation

Section 2 of the Small Claims Tribunal Ordinance (Cap. 338) is amended---

(a) in the definition of "claim", by repealing "means" and substituting "includes";

(b) by adding---

""Board" (仲裁處) means the Minor Employment Claims Adjudication Board established by section 3 of the Minor Employment Claims Adjudication Board Ordinance (Cap. 453);

"Labour Tribunal" (勞資審裁處) means the Labour Tribunal established by section 3 of the Labour Tribunal Ordinance (Cap. 25);

"Lands Tribunal" (土地審裁處) means the Lands Tribunal established by section 3 of the Lands Tribunal Ordinance (Cap. 17);".

3. Transfer of claims

Section 7 is amended by adding "the Board, the Labour Tribunal, the Lands Tribunal," before "the District Court" where it twice appears.

4. Jurisdiction as to counterclaim

Section 10(1) and (2) is amended by adding "the Board, the Labour Tribunal, the Lands Tribunal," before "the District Court".

5. Costs in transferred cases

Section 11 is amended---

(a) by adding "the Board, the Labour Tribunal, the Lands Tribunal," before "the District Court";

(b) by adding "the Board, the Labour Tribunal, the Lands Tribunal or" before "the court";

(c) by repealing everything after "are transferred" where it secondly appears and substituting "; and the Board, the Labour Tribunal, the Lands Tribunal or the court may make orders with respect thereto, and where the proceedings are transferred from the tribunal to the Lands Tribunal, the District Court or the Court of First Instance, the Lands Tribunal or the court may also make orders as to the scales on which the costs of the proceedings are to be taxed, and the costs of the whole proceedings shall be taxed in the Lands Tribunal or the court.".

6. Service of claim and notice of hearing

Section 14(2)(b)(iia) is amended by repealing "posting them by registered" and substituting "sending them by".

7. Keeping of summary of evidence, etc.

Section 15 is amended by repealing "a summary" and substituting "or cause to be kept a summary, whether by means of shorthand notes or mechanical, electronic or optical means or otherwise,".

8. Determination of claims

Section 18(5) is amended---

(a) in paragraph (b), by repealing "or" at the end;

(b) by adding---

"(ba) by sending it by post addressed to him at his last known place of residence or at his place of business; or".

9. Right of audience

Section 19(2) is amended by repealing "No" and substituting "Except for the purposes of proceedings under section 35A for insulting behaviour, no".

10. Section added

The following is added---

"26A. Failure to comply with order of the tribunal

Where the tribunal directs a party to comply with an order within a specified time and the party fails to do so, the tribunal may dismiss the claim or counterclaim filed by the party, stay the proceedings or enter judgment against the party, as the case may be, on such terms as it thinks just.".

11. Review of decision concerning transfer

Section 27(1) is amended---

(a) by adding "the Board, the Labour Tribunal, the Lands Tribunal," before "the District Court";

(b) by repealing "Court of Appeal" and substituting "Court of First Instance";

12. Review of awards and orders

Section 27A(1) is amended by repealing "其作出裁斷或命令的日期起計" and substituting "自其作出裁斷或命令的日期起計的".

13. Penalty for neglect of witness summons

Section 35(1) is amended by repealing "$1,000" and substituting "level 2".

14. Sections added

The following are added---

"35A. Insulting behaviour

(1) If any person, in a hearing of proceedings in the tribunal---

(a) uses a threatening or insulting expression to or concerning or in the presence of the adjudicator; or

(b) behaves in an insulting manner or wilfully interrupts the hearing of proceedings, the adjudicator may summarily sentence the person to a fine at level 3 and to imprisonment for 6 months.

(2) For the avoidance of doubt, it is hereby declared that section 50 of the High Court Ordinance (Cap. 4) applies in the case of any exercise by the adjudicator of his power under subsection (1).

35B. Power of adjudicator to enforce
payment of fine, etc.

For the purposes of enforcing the payment of any fine imposed or giving effect to any sentence of imprisonment, an adjudicator shall have the powers of a judge.".

15. Chief Justice may make rules

Section 36(b) is amended by adding "the Board, the Labour Tribunal, the Lands Tribunal," before "the District Court".

16. Section added

The following is added---

"39. Immunity

(1) An adjudicator has, in the exercise of his powers or duties under this Ordinance, the same privileges and immunities as a judge of the Court of First Instance in civil proceedings in that court.

(2) A witness before the tribunal shall be entitled to the same privileges and immunities as if he were a witness in civil proceedings in the Court of First Instance.".

17. Jurisdiction of Tribunal

The Schedule is amended, in paragraphs 1 and 2(b), by repealing "$15,000" and substituting "$50,000".

18. Consequential amendments

The enactments specified in the Schedule are amended as set out in the Schedule.

SCHEDULE [s. 18]

Consequential Amendments

Lands Tribunal Ordinance

1. Jurisdiction of the Tribunal

Section 8 of the Lands Tribunal Ordinance (Cap. 17) is amended by adding---

"(8A) The Tribunal shall have jurisdiction to determine any claim or counterclaim or set-off and counterclaim transferred to it under section 7 or 10 of the Small Claims Tribunal Ordinance (Cap. 338).".

Labour Tribunal Ordinance

2. Claims, etc. transferred from the Minor Employment
Claims Adjudication Board, etc.

Section 15A of the Labour Tribunal Ordinance (Cap. 25) is amended---

(a) by renumbering it as section 15A(1);

(b) in subsection (1), by adding "or under section 7 of the Small Claims Tribunal Ordinance (Cap. 338)" after "(Cap. 453)";

"(2) Where a counterclaim or set-off and counterclaim is transferred to the tribunal under section 10 of the Small Claims Tribunal Ordinance (Cap. 338)---

(a) the counterclaim or set-off and counterclaim shall upon such transfer be regarded for all purposes as---

(i) a claim or counterclaim; or

(ii) a claim or set-off and counterclaim, as the case requires, brought under this Ordinance;

(b) all requirements under this Ordinance that would have to be fulfilled in relation to the counterclaim or set-off and counterclaim before it could be inquired into, heard and determined by the tribunal if it were---

(i) a claim or counterclaim; or

(ii) a claim or set-off and counterclaim, as the case requires, brought under this Ordinance shall, upon such transfer, be deemed to have been fulfilled in relation to the counterclaim or set-off and counterclaim.".

3. Schedule amended

The Schedule is amended, in paragraph 6, by adding "or section 7 or 10 of the Small Claims Tribunal Ordinance (Cap. 338)" after "(Cap. 453)".

Minor Employment Claims Adjudication Board Ordinance

4. Jurisdiction of the Board

Section 5 of the Minor Employment Claims Adjudication Board Ordinance (Cap. 453) is amended by adding---

"(1A) Without derogation from the generality of subsection (1), the Board shall have jurisdiction to inquire into, hear and determine a claim or counterclaim or set-off and counterclaim transferred to it under section 7 or 10 of the Small Claims Tribunal Ordinance (Cap. 338).".

5. Section added

The following is added---

"14A. Claims transferred from the Small Claims Tribunal

(1) Where a claim is transferred to the Board under section 7 of the Small Claims Tribunal Ordinance (Cap. 338)---

(a) the claim shall upon such transfer be regarded for all purposes as a claim brought under this Ordinance;

(b) the requirements under this Ordinance that would have to be fulfilled in relation to the claim before it could be inquired into, heard and determined by the Board if it were a claim brought under this Ordinance shall, upon such transfer, be deemed to have been fulfilled in relation to the claim.

(2) Where a counterclaim or set-off and counterclaim is transferred to the Board under section 10 of the Small Claims Tribunal Ordinance (Cap. 338)---

(a) the counterclaim or set-off and counterclaim shall upon such transfer be regarded for all purposes as---

(i) a claim or counterclaim; or

(ii) a claim or set-off and counterclaim, as the case requires, brought under this Ordinance;

(b) the requirements under this Ordinance that would have to be fulfilled in relation to the counterclaim or set-off and counterclaim before it could be inquired into, heard and determined by the Board if it were---

(i) a claim or counterclaim; or

Small Claims Tribunal (General) Rules

6. Rule added

The Small Claims Tribunal (General) Rules (Cap. 338 sub. leg.) is amended by adding---

"4A. Keeping of the Register of Claims, etc.

The Register of Claims kept under rule 4 and the summary kept under section 15 of the Ordinance may be kept---

(a) in the form of a book;

(b) in the form of a disc, card, tape, microchip, sound track or other device on or in which information or data is recorded or stored by mechanical, electronic, optical or other means; or

7. Transfer of claim, counterclaim, etc. to
District Court or Court of First
Instance, etc.

Rule 7 is amended---

(a) by repealing "the Court of First Instance or the District Court" and substituting "the Board, the Labour Tribunal, the Lands Tribunal, the District Court or the Court of First Instance";

(b) by adding "the Board, the Labour Tribunal, the Lands Tribunal or" before "the court".

Small Claims Tribunal (Fees) Rules

8. Fees

Item 1 of the Schedule to the Small Claims Tribunal (Fees) Rules (Cap. 338 sub. leg.) is repealed and the following substituted---

"1. Filing of claim---

where the claim does not exceed $3,000 20

where the claim exceeds $3,000 but does not exceed $17,000 40

where the claim exceeds $17,000 but does not exceed $33,000 70

where the claim exceeds $33,000 but does not exceed $50,000 120".

Small Claims Tribunal (Forms) Rules

9. Schedule amended

The Schedule to the Small Claims Tribunal (Forms) Rules (Cap. 338 sub. leg.) is amended---

(a) in Form 5, by repealing "$1,000" and substituting "level 2";

(b) in Form 7---

(i) in the heading, by repealing "Court of Appeal" and substituting "Court of First Instance";

(ii) by repealing "Court of Appeal" and substituting "Court of First Instance";

(iii) by adding "Minor Employment Claims Adjudication Board/Labour Tribunal/Lands Tribunal/" before "District Court/Court of First Instance";

(i) in the heading, by repealing "Court of Appeal" and substituting "Court of First Instance";

(ii) by adding "Minor Employment Claims Adjudication Board/Labour Tribunal/Lands Tribunal/" before "District Court/Court of First Instance";

(iii) by repealing "Court of Appeal" and substituting "Court of First Instance".

Explanatory Memorandum

The principal object of this Bill is to amend the Small Claims Tribunal Ordinance (Cap. 338) to---

(a) provide for the transfer of a claim or counterclaim or set-off and counterclaim from the Small Claims Tribunal ("the tribunal") to the Minor Employment Claims Adjudication Board, the Labour Tribunal or the Lands Tribunal in addition to the present power to transfer such proceedings from the tribunal to the District Court or the Court of First Instance (clauses 3 and 4);

(b) enable the service of the tribunal's document to be effected by post, registered or otherwise (clauses 6 and 8);

(d) allow legal representation only in proceedings relating to insulting behaviour (clause 9);

(e) empower the tribunal to deal with any party's failure to comply with directions (clause 10);

(f) empower the Court of First Instance to review the decision of the tribunal concerning transfer which was previously dealt with by the Court of Appeal (clause 11);

(g) introduce the offence for insulting behaviour and its penalty (clause 14);

(h) give immunity to the adjudicator and the witness before the tribunal (clause 16);

(i) raise the financial limit of the claims from $15,000 to $50,000 (clause 17).

2. The Bill also makes consequential amendments to rules made under the Small Claims Tribunal Ordinance (Cap. 338) and to other enactments.