HONG KONG GOLF CLUB v. DIRECTOR OF ENVIRONMENTAL PROTECTION

HCAL 1258/2023

[2023] HKCFI 2915

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1258 OF 2023

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R  U  L  I  N  G

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A. Introduction

1.  In this Ruling, I shall continue to adopt the definitions adopted by me in my previous Decision, [2023] HKCFI 1946.

2.  By two summonses dated 27 October 2023 (“Summonses”), each of the DEP and the CEDD seek an extension of time for filing and serving their affirmation evidence in opposition to the substantive application for judicial review, fixed to be heard on the dates 9, 10 and 13 May 2024.

3.  The Summonses were fixed for hearing on 13 November 2023.

4.  The DEP’s application is supported by the affirmation of Chik Wai On Edward. The CEDD’s application is supported by the affidavit of Cheung Chi Tao Matthew.

5.  The extension sought by paragraph 1 of each of the Summonses is for an additional 28 days after the deadline originally fixed by an order made by consent on 14 August 2023, namely an extension until 27 November 2023.

6.  Paragraph 2 of each of the Summonses seeks an order that the HKGC have leave to file and serve its affirmation evidence in reply, if any, on or before 2 January 2024 (CEDD) or 9 January 2024 (DEP).

7.  The extension sought by the DEP and the CEDD for their evidence is not very controversial, as the HKGC has consented to it (albeit on the proviso or basis that it should have longer to file its reply evidence than is put forward in the Summonses).

8.  Hence, the real area of controversy is as to the time within which the HKGC should file and serve its reply evidence. At the time of the issue of the Summonses, no consensus had been reached by the parties on that point.

9.  As a result, the HKGC filed the 2^nd affirmation of Jessica Sien Wai Van Der Kamp, to explain its position.

10.  That affirmation also suggested that in light of the exchange of evidential material relating to the Summonses – in Mr Chik’s affirmation, Mr Cheung’s affidavit and Ms Van Der Kamp’s affirmation – it would be appropriate to vacate the hearing fixed for 13 November 2023, and for the two Summonses to be dealt with forthwith on paper, on the basis of the matters already set out in those materials.

11.  On 8 November 2023, I acceded to that suggestion. I directed that the hearing should be vacated, and that I would deal with the applications on paper. This I now do.

B.  EOT for DEP and CEDD

12.  As already noted, the extension of time until 27 November 2023 sought by each of the DEP and CEDD is not really very controversial. In any event, having considered the affidavit/affirmation materials provided with the Summonses, it seems to me entirely appropriate to grant the extension sought.

13.  Mr Chik has understandably emphasised the wide range of complaints made against the EIA Report, and the large volume of documentation covering multiple technical disciplines. As Mr Chik suggests, fairness requires fair and reasonable time and opportunity to consider these materials, to liaise with the relevant government departments or bureaux and to prepare the detailed evidence intended to be presented in response to the application. Mr Chik also makes reference to the complex legal issues arising, and the absence of any prejudice to any party if the timetable is shifted from that originally agreed and ordered by consent.

14.  Mr Cheung has made similar points.

15.  Therefore, I grant the extension sought by each of the DEP and the CEDD for them to file and serve their affirmation/affidavit evidence in opposition, until 27 November 2023.

C.  Consequent EOT for HKGC

16.  However, there seems to me to be real force in Ms Van Der Kamp’s submission that fairness also requires longer for the HKGC to file its reply evidence than is so far suggested by the DEP and the CEDD. As she points out, by 27 November 2023, each of them would have had a period of 126 days to prepare and file their substantive – and, I would add, apparently likely substantial – evidence in opposition.

17.  The original timetable made by consent permitted 35 days for HKGC to file its evidence in reply. That is still the period suggested by the CEDD (2 January 2024), albeit that the DEP appears to recognise that some longer period is warranted (9 January 2024).

18.  Allowing the HKGC only 35 days until 2 January 2024 to file its evidence in reply will include a which encompasses the Christmas and New Year period when it can reasonably be expected that various members of HKGC’s management, as well as its solicitors, Counsel and technical experts will have pre-existing (and no doubt varying and overlapping) travel plans and other work commitments which are likely adversely to affect the time available for dealing with this matter. Allowing until 9 January 2024 does, of course, provide a week longer (43 days), but may not suffice to overcome the issues arising. Indeed, as Ms Van Der Kamp points out, the problems arising from the Christmas/New Year holiday period would not have arisen at all but for the extension of time sought by the DEP and the CEDD.

19.  In the circumstances, were a deadline of 2 or 9 January 2024 to be imposed now, it can reasonably be expected that there would be an application for a further extension of time, and such an application may well have merit. The need for such a reasonably foreseeable application can be avoided if a realistic timetable is set now.

20.  Further, I agree that there is no prejudice likely to be caused to any party by permitting the HKGC the additional time it seeks until 31 January 2024. That will not affect the remainder of the agreed timetable towards the substantive hearing.

D.  Result and Order

21.  In the circumstances, I make the following orders:

(1)  The time for each of the Respondent and the Interested Party to file and serve affidavit/affirmation evidence in opposition to the substantive judicial review application be extended until 27 November 2023.

(2)  The time for the Applicant to file and serve affidavit/affirmation evidence in reply, if any, be extended until 31 January 2024.

E.  Costs

22.  As to costs, each of the DEP and the CEDD acknowledge in the Summonses that they should be liable for the costs of the HKGC in any event. The DEP suggest that those costs should be in the usual fixed sum of HK$1,040. The CEDD suggests that there is cost should be paid by it in any event (without suggesting a summary assessment or taxation).

23.  The HKGC suggests – via Ms Van Der Kamp’s affirmation – that its costs of the Summonses should be payable to HKGC, to be taxed if not agreed.

24.  It seems to me that there is no reason to put off the question of costs when a taxation. Whilst I acknowledge that a typical time summons, particularly if dealt with by consent, would lead to an order of costs payable by the party seeking extension in the usual fixed sum, the current situation is different. I think the DEP and the CEDD could and should sensibly have consented to the time sought by the HKGC to deal with the reply evidence in response to the opposition evidence to be filed by the extended deadline sought by them. This is particularly so in light of the basis upon which they sought their own extensions of time.

25.  Therefore, in the broad exercise of my discretion as to costs, I order the HKGC’s costs of each of Summonses to be paid by the DEP and the CEDD respectively, which I summarily assess in the sum of HK$4,000 each.

26.  There will be no order as to costs between the DEP and the CEDD.