LUBIANO NANCY ALMORIN v. THE DIRECTOR OF IMMIGRATION

HCAL 210/2016

[2019] HKCFI 1539

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 210 OF 2016

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D E C I S I O N

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INTRODUCTION

1.  The issues which arise for determination are:

(1) whether the court’s order made on 14 February 2018 (“the Order”) dismissing the Applicant’s summons dated 13 September 2017 to, inter alia, amend the Form 86 is –

(a) an “order refusing to allow an amendment of a pleading to introduce a new claim or defence or any other new issue” within the meaning of Order 59, rule 21(2)(i)[1], and/or

(b) a “judgment or order determining in a summary way the substantive rights of a party to an action” within the meaning of Order 59, rule 21(1)(a),

and therefore an appeal against the Order lies as of right to the Court of Appeal;

(2) whether the Order is not an “interlocutory judgment or order” within the meaning of Section 14AA(1) of the High Court Ordinance, Cap 4 (“the Ordinance”), and therefore an appeal against the Order lies as of right to the Court of Appeal; and

(3) whether the court should, alternatively, grant to the Applicant (i) an extension of time to apply for leave, and (ii) leave, to appeal against the Order.

BACKGROUND TO THE PRESENT APPLICATION

2.  The background facts relevant to the Applicant’s application to amend the Form 86 and the court’s reasons for refusing the application are set out in paragraphs 43 to 53 of the court’s judgment handed down on 14 February 2018 (“the Judgment”), and shall not be repeated here, save to mention that:

(1) the proposed amendments to the Form 86 relate principally to the “Ultra Vires Ground” referred to in paragraph 1(1) of the Judgment;

(2) in the original Form 86, the Applicant contends that the imposition of the Live-In Requirement by the Director on FDHs as a “condition of stay” is ultra vires of his powers under Section 11 of the Immigration Ordinance, Cap 115; and

(3) in the draft Amended Form 86, the Applicant contends that the imposition of the Live-In Requirement as a “mandatory pre-condition to the exercise of the Director’s powers” under Section 11 of the Immigration Ordinance is ultra vires.

3.  In view of the fact that the Summons was made returnable on 3 October 2017, being the 1^st day of the substantive hearing of the application for judicial review, the court heard arguments on both the question of whether the Applicant should be granted leave to amend the Form 86 as well as the merits of the reformulated Ultra Vires Ground, and dealt with both matters in the Judgment.  In the event, the court dismissed both the application to amend and the substantive application for judicial review.

4.  In the Applicant’s original Notice of Appeal dated 25 April 2018, the Applicant did not raise any appeal against the Order, or challenge the court’s rejection of the Ultra Vires Ground.  On 16 May 2018, a Respondent’s Notice was filed on behalf of the Respondent.

5.  On 13 December 2018, the Applicant filed an Amended Notice of Appeal, in which the Applicant sought, for the first time, to appeal against the Order.  On 21 May 2019, while the parties were engaged in correspondence relating to the preparation of the appeal bundles, the Department of Justice pointed out to the Applicant’s solicitors that the Order was an interlocutory order and thus leave to appeal was required before the Applicant could appeal against the Order (which she had not obtained).  Further correspondence ensued which is it not necessary to set out here.

6.  On 30 May 2019, the Applicant issued the present summons (“the Summons”) seeking the court’s direction on whether the Order is one that is referred to in Order 59, rule 21(1)(a) and (2)(i), alternatively an order that the Applicant be granted (i) an extension of time to apply for leave, and (ii) leave, to appeal against the Order.

A FORM 86 IS NOT A PLEADING

7.  Section 14AA(1) of the Ordinance states as follows:

“Except as provided by rules of court, no appeal lies to the Court of Appeal from an interlocutory judgment or order of the Court of First Instance in any civil cause or matter unless leave to appeal has been granted by the Court of First Instance or the Court of Appeal”.

8.  By Order 59, rule 21(1)(a), Section 14AA(1) of the Ordinance does not apply to “a judgment or order determining in a summary way the substantive rights of a party to an action”, and accordingly an appeal lies as of right from such judgment or order.  Order 59, rule 21(2) sets out a non-exhaustive list of judgments or orders which are regarded as being orders determining in a summary way the substantive rights of a party for this purpose.  Amongst them is “an order refusing to allow an amendment of a pleading to introduce a new claim or defence or any other new issue” (Order 59, rule 21(2)(i)).

9.  The first question which arises for determination is whether a form 86 should be regarded as a “pleading”.

10.  Order 4, rule 1(1) states that the expression “pleading” does not include a “petition, summons or preliminary act”.  This negative definition does not tell us what the expression “pleading” includes. It is, however, of note that a petition is expressly excluded from the definition.  This exclusion makes it clear that an originating document which is required, by Order 9, rule 2(1), to include a concise statement of the nature of the claim made or the relief or remedy required in the proceedings begun thereby is not necessarily a pleading.

11.  In my view, a form 86 is not a “pleading”, for the following reasons.  First, a form 86 is by its nature a “notice” of an application for leave to apply for judicial review which is required, by Order 53, rule 3(2)(a), to contain a statement of, inter alia, the names and descriptions of the relevant parties as well as the relief sought and the grounds on which it is sought.  Its function is to enable the court to determine whether leave to apply for judicial review should be granted and, if leave is granted, to delineate or define the grounds of judicial review and the relief which may be relied upon and sought by the applicant at the substantive hearing of the application for judicial review (see Order 53, rule 6(1)). Although pleadings also serve the function of defining the issues to be determined at a trial, such issues are generally crystallised by a process of exchange of pleadings, in the course of which issues raised by one party are admitted, not admitted or denied by the opposite party.

12.  Second, Order 18 sets out a number of technical rules relating to pleadings which simply have no application to a form 86, eg, rule 5 (service of pleadings in Summer Vacation), rule 7 (facts, not evidence, to be pleaded), rule 7A (conviction, etc, to be adduced in evidence: matter to be pleaded), rule 8 (matters which must be specifically pleaded), rule 12 (particulars of pleadings), rule 13 (admissions and denials), rule 14 (non-admission by joinder of issue), rule 20 (close of pleadings), and rule 20A (pleading, etc, to be verified by statement of truth).

13.  Third, Order 53, rule 7(1) provides that on an application for judicial review the judge may award damages to the applicant if, inter alia, he has included in the statement in support of his application for leave under rule 3 a claim for damages arising from any matter to which the application relates, and rule 7(2) goes on to provide that Order 18, rule 12 shall apply to a statement relating to a claim for damages “as it applies to a pleading”.  If a form 86 is a “pleading”, rule 7(2) would be quite unnecessary.

14.  In view of my conclusion that a form 86 is not a pleading, it is unnecessary to consider the further question of whether the proposed amendments to the Form 86 in the present case “introduce a new claim or defence or any other new issue”.  In all, the Order is outside the scope of Order 59, rule 21(2)(i).

THE ORDER IS NOT ONE DETERMINING IN A SUMMARY WAY THE SUBSTANTIVE RIGHTS OF A PARTY TO AN ACTION

15.  Mr Deng’s first fall-back position is that if the Order does not come within the scope of Order 59, rule 21(2)(i), it is nevertheless an order “determining in a summary way the substantive rights of a party to an action” within the meaning of Order 59, rule 21(1)(a).

16.  In Lo King Yeung v Eddie Chu Hoi Dick [2017] 4 HKLRD 723 (24 August 2017), at paragraph 13, Au J (as he then was) held that on a proper construction of Order 59, rule 21(1)(a), it only applies to a judgment or order “which by itself deals with [the] substantive rights of a party”.  Accordingly, it has no application to a procedural order even though it has the “collateral effect of summarily determining the substantive rights of a party”.  In that case, the order in question related to a refusal to grant an extension of time for the plaintiff to pay security for costs under Section 73(5) of the Legislative Council Ordinance, Cap 542, in proceedings brought to disqualify the defendants from acting as Members of the Legislative Council.  In a related application for leave to appeal (Lo King Yeung v Eddie Chu Hoi Dick, CAMP 18 and 19/2017 (6 November 2017)), the Court of Appeal expressly approved the reasoning of Au J in paragraphs 13 to 16 of his said decision.  Similarly, in Astro Nusantara v PT Anyunda Prima Mitra (No 2) [2016] 1 HKLRD 591, at paragraph 9, and China Metal Recycling (Holdings) Ltd v Chun Chi Wai (unreported, HCA 1412/2013, 6 May 2016), at paragraph 8, this court held that an order refusing to grant an extension of time to the defendant to apply to set aside an order granting leave to enforce a foreign arbitral award and the judgment entered pursuant to that order, and an order refusing to grant an extension of time to the defendant to apply for relief from sanction imposed under an unless order, were procedural orders outside the scope of Order 59, rule 21(1)(a).

17.  In the present case, the Order refusing to allow the Applicant to amend the Form 86 is a procedural order, although it has the collateral effect of preventing the Applicant from pursuing the reformulated Ultra Vires Ground.  In my view, the Order is not one “determining in a summary way the substantive rights of a party to an action” within the meaning of Order 59, rule 21(1)(a).

THE ORDER IS AN INTERLOCUTORY ORDER

18.  Mr Deng’s second fall-back position is that the Order should be regarded as a “final”, as opposed to “interlocutory”, order, and thus Section 14AA of the Ordinance has no application to it.  In order to determine whether a judgment or order is “final” or “interlocutory”, the court applies the well-established “application test”, namely, whether the order made upon the relevant application would, whether it fails or succeeds, determine the whole action (Shell Hong Kong Ltd v Yeung Wai Man Kiu Yip Co Ltd (2003) 6 HKCFAR 222, at paragraph 26).  When applying this test, it is necessary to look not only at its form, eg, under which order or rule of court it is made, but also the purpose and substance of the application and the issues to be determined by the court (B+B Construction Ltd v Sun Alliance and London Insurance Plc (2003) 3 HKCFAR 503, at 506H-J).  Further, as stated by Lam VP, giving the reasons for judgment of the Court of Appeal, in Bright Shipping Ltd v Changhong Group (HK) Ltd [2019] 2 HKLRD 220, at paragraph 11:

“In our judgment, it is important to bear in mind the context in which Chan PJ made those observations[2]. It was said in relation to a decision that finally determined an issue on the substantive rights between the parties. In other words, the issue in question has to be an issue on the merits as opposed to the procedural steps for bringing or preparing a case before it is presented to the court for final determination on the merits.”

19.  In the present case, the effect of the Order is to preclude the Applicant from advancing a particular line of argument that the Director does not have lawful authority to impose the Live-In Requirement on FDHs.  It is a decision on the procedural steps for bringing the relevant issue to be determined by the court, but not a decision on the merits of the argument, although it is right to point out that the court reached its decision because it considered that the Applicant’s argument had no merits.  In all, I am of the view the Order is an interlocutory order, such that leave is required for the Applicant to appeal against it.

EXTENSION OF TIME TO APPLY FOR LEAVE TO APPEAL, AND LEAVE TO APPLY, SHOULD NOT BE GRANTED

20.  The last question which requires determination is whether the court should grant to the Applicant (i) an extension of time to apply for leave, and (ii) leave, to appeal against the Order.  In my view, the answer is “no”, for the following reasons.  First, I do not consider the proposed appeal has a “reasonable prospect of success” within the meaning of Section 14AA(4)(a) of the Ordinance, as explained by the Court of Appeal in SMSE v KL [2009] 4 HKLRD 127, at paragraph 17.  I have set out my reasons for rejecting the Ultra Vires Ground in paragraphs 46 to 52 of the Judgment, and do not propose to repeat the same here.  I also do not consider that there is any other reason in the interests of justice why the appeal should be heard.

21.  Second, it is common ground that, regardless of whether the Applicant is required to obtain leave to appeal against the Order, she is out of time in serving a notice of appeal in respect of the Order and would require an extension of time to do so, which is, however, not sought in the Summons.  In any event, even if an extension of time to appeal is sought, the Applicant has failed to give any good explanation for the substantial delay in the proposed appeal against the Order.  The 1^st affidavit of Karen McClellan filed in support of the present application seeks to justify why leave to appeal is not required.  It does not explain why the Applicant did not seek to appeal against the Order until December 2018, save the statement that the Amended Notice of Appeal was filed “[f]ollowing consideration of matters raised in the Respondent’s Notice and Counsel advice”.

22.  Third, it seems clear that the Applicant wishes to appeal against the Order in order to resurrect the Ultra Vires Ground in the forthcoming appeal (see paragraphs 2 to 4 of Mr Deng’s Skeleton Submissions dated 6 June 2019).  However, none of the 7 Grounds of Appeal in the Amended Notice of Appeal in fact goes to the Ultra Vires Ground.  The only reference to the Order is to be found in Ground 6 of the Amended Notice of Appeal which, however, concerns the Irrationality Ground mentioned in paragraph 1(4) of the Judgment.  The very limited proposed amendments to paragraphs 116 and 119 of the Form 86 relevant to that ground would not, in my view, affect the ability of the Applicant to argue Ground 6 of the Amended Notice of Appeal in the Court of Appeal.

DISPOSITION

23.  For the foregoing reasons, the Summons is dismissed with costs to the Respondent to be taxed if not agreed.  The Applicant’s own costs shall be taxed in accordance with legal aid regulations.