NGUYEN TUAN CUONG AND OTHERS v. SECRETARY FOR JUSTICE

CACV 163/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 163 OF 1998

(On appeal from HCMP 1989 of 1995)

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J U D G M E N T

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Godfrey, J.A. :

Introduction

1. This is an appeal by the respondent, the Secretary for Justice, from an order of Findlay, J., made on 4 June 1998, in judicial review proceedings commenced by one Nguyen Tuan Cuong (a Vietnamese) and 227 other applicants, for the joinder of another 64 parties to the proceedings.

Background

2. After a long and tortuous history, involving proceedings at first instance, in this court and at the Privy Council, the original applicants in the judicial review proceedings were held entitled to a judicial review of the administrative decisions made in their cases pursuant to the provisions of the Immigration Ordinance, Cap. 115.

3. The original applicants had been detained pursuant to powers conferred by the Ordinance, and, after they were successful in their claim for judicial review, sought to claim damages for what they alleged was their wrongful detention (in private law terms, damages for false imprisonment). On 13 May 1987, Findlay, J. ordered that the applicants' claim for damages in the proceedings be proceeded with as if the same had been begun by writ.

The judge's order of 4 June 1998

4. The judge's subsequent order of 4 June 198 was expressed as follows :-

"1. for the conduct of the claim for damages in these proceedings:

(a) the Applicants listed in the FIRST SCHEDULE hereto be at liberty to amend the Writ of Summons deemed to have been issued herein by amending their names [in the manner described and the applicants be assigned a plaintiff number];

(b) the Applicants listed in the SECOND SCHEDULE hereto be assigned the Plaintiff numbers shown in the fifth column of the SECOND SCHEDULE;

(c) the Writ of Summons deemed to have been issued herein be amended by adding the names of the persons listed in the THIRD SCHEDULE hereto as Plaintiffs herein and the said persons be assigned the Plaintiff numbers shown in the fourth column of the THIRD SCHEDULE;

(d) the Applicants listed in the FOURTH SCHEDULE hereto be assigned the Plaintiff numbers shown in the fifth column of the FOURTH SCHEDULE;

2. the Applicants be granted leave to serve their amended Writ of Summons within 14 days;

[3. This provided for the costs of the application.]"

5. Para. 1(c) of this order (which is the part of the order with which we are concerned) appears to proceed on the footing that the court had power to add as parties to the proceedings additional parties ("the class 1(c) parties") who had never applied for a judicial review at all.

The appeal

6. The Secretary for Justice contends that that order was misconceived. She is clearly right.

7. Counsel for the class 1(c) parties attempted manfully to justify the order under appeal, but, as it seems to me, he faced an impossible task. An application for judicial review has to be made under Order 53 of the Rules of the High Court, after leave to apply has been granted (the provision for leave is intended to act as a filter, so as to enable claims which have no real chance of success to be excluded at an early stage from judicial consideration). What is proposed in the present case is to add, as parties to the proceedings, parties who have not applied even for leave to apply for a judicial review of their cases, but whose cases are said to be similar to those of the applicants for judicial review who have not only applied for judicial review but have succeeded in obtaining it. This shortcut, although intended to save time and costs, is, as it seems to me, quite illegitimate.

8. The argument for the class 1(c) parties is founded on the provisions of Order 53 rule 9(5), which provides among other things that where, in proceedings for a judicial review, a claim is made for damages, and the court considers that such a claim should not be granted on an application for judicial review but might have been granted if that claim had been made in an action begun by writ by the applicant at the time of making his application, the court may, instead of refusing the application, order the proceedings to continue as if they had been begun by writ; and Order 28, rule 8, shall apply as if the application had been made by summons.

9. Order 28, rule 8 reads (so far as is material) as follows :-

"8(1) Where, in the case of a cause or matter begun by originating summons, it appears to the Court at any stage of the proceedings that the proceedings should for any reason be continued as if the cause or matter had been begun by writ, it may order the proceedings to continue as if the cause or matter had been so begun ....."

10. Counsel for the class 1(c) parties reminds us, quite rightly, that the Rules of the High Court are there to facilitate, and not to obstruct, the conduct of legal proceedings. However, we cannot stretch the Rules of the High Court so as to give them a meaning which they cannot possibly bear. We must do our best to give them an imaginative and purposive construction. But, as it seems to me, on no possible construction of the rules to which I have referred is it possible for the court to add, as parties to judicial review proceedings, parties who have never yet applied for a judicial review at all.

11. Counsel for the class 1(c) parties referred us to Order 15 rule 6; but this is designed for quite different purposes. It is designed so as to rescue a cause or matter which might otherwise be defeated by a non-joinder of a necessary or proper party, and to enable joinder of additional parties, in private law proceedings.

12. That is not this case. If we were to allow the order made by the judge to stand, applicants who have not applied for a judicial review will be treated as if they had done so; and had succeeded; and were accordingly entitled to claim damages, just as those who had been allowed a judicial review in the first place. That cannot be right. The only proceedings before the court are proceedings for a judicial review, to which has been added, as the rules allow, a claim for damages.

13. We were referred by counsel for the applicants to De Smith, Woolf & Jowell, Judicial Review of Administrative Action, 5th Edition, in particular to the following passage at page 764 :-

"19-012 The Order 53 procedure is not particularly well suited to determining pecuniary claims. Factual disputes are more appropriately dealt with by detailed pleadings and/or the testimony of witnesses subject to cross-examination rather than by affidavit evidence. So, although not strictly necessary for the court to do so, if a claim for damages is included on an application for judicial review, it is common for the court first to determine the public law issues, and then order issues relating to tortious or other private law liability to proceed as if begun by writ. Alternatively, the court may award damages at the judicial review hearing, but leave quantum to be assessed by a Master." (emphasis added.)

14. There has here been no determination of the public law issues as regards any of the class 1(c) parties, who seek to claim damages for a wrong done to them arising out of unlawful administrative action. There has been no judicial review of their cases. There is no peg on which to hang their claim for damages. An applicant who seeks to claim damages for false imprisonment as a result of his unlawful detention by administrative action must either bring proceedings for judicial review himself, and add to that a claim for damages; or bring a private law claim for damages in an action commenced by writ. What he cannot do is to short circuit all this.

Conclusion

15. For these reasons, I am of the opinion that the judge erred in principle here in making the order which he did. I would allow the appeal and set that order aside. I accept entirely that the application on behalf of the class 1(c) parties was motivated by a desire to save time and costs. However, for the reasons I have given, I consider that we must, as I have said, allow this appeal.

Rogers, J.A. :

16. I agree.

17. Mr. Kwok, who has said everything he could on behalf of the Applicants, has argued strongly that the Rules of the High Court should be construed purposively. They are there to facilitate proceedings and not to provide obstacles for parties and would-be parties. With that, I entirely agree.

18. The difficulty, however, stems in this case from what precisely the Rules mean and what precisely the Applicants are aiming to do. As has been pointed out where damages are claimed in judicial review proceedings, Order 53 rule 9(5) provides that if the Court considers that they should not be granted on an application for judicial review but might have been granted if they had been sought in an action begun by writ, it can order the proceedings to continue as if they had been begun by writ. That does not mean however that the proceedings had been begun by writ, nor is there some hypothetical writ in existence. Unfortunately, there is some loose wording in the Notes to the White Book at 53/14/87 where, in the middle of the paragraph, it is said :-

"In such circumstances, where the court decides to convert the application for judicial review into a writ action, it may give consequential directions under O.28, r.8 by analogy with converting originating summons proceedings into a writ action. Such a conversion of the proceedings would avoid the need for the applicant to bring fresh proceedings."

19. Whereas the last sentence may be accurate, the first sentence might give the impression that some hypothetical writ had been issued whereas that is not the case. The distinction in this case, in my view, is important.

20. Mr. Kwok has indicated on behalf of the Applicants that they may well be seeking damages on the basis of some unlawful act in a judicial review sense. Whether or not that claim would be sustainable is a matter which would have to be decided on another day but on the hypothesis that the proceedings had been converted into a writ action that claim would be unsustainable because there would have been no judicial review.

21. The truth of the matter is, however, that the proceedings remain judicial review proceedings but procedurally thereafter are treated as a writ action for various purposes. If the Applicants desire judicial review relief, there are a number of matters which have to be considered. The first is that leave has to be granted on an ex parte application. There are shorter time frames within which judicial review proceedings have to be taken rather than proceedings for tort. If, however, the Applicants' claims were confined to claims in respect of torts committed, then there is no difficulty in their issuing a writ provided, of course, that they are within the period for limitation of actions.

22. For the reasons given by Godfrey, J.A., I agree this appeal must be allowed.

Mortimer, V.-P.:

23. For the reasons which have been given, I agree that this appeal should be allowed and the judge's order set aside. There is nothing I can usefully add.

24. In those circumstances the appeal is allowed. The judge's order is set aside.

25. We cannot see any reason for making other than the usual order which will be that the Secretary for Justice shall have the costs here and below against the unsuccessful applicants.