MA WAN FARMING LTD v. CHIEF EXECUTIVE IN COUNCIL AND ANOTHER

CACV 182/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 182 OF 1997

(ON APPEAL FROM AL 4 OF 1997)

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J U D G M E N T

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Liu, J.A.:

1. On 26 March 1998, this court handed down a written judgment and made an order nisi for costs against the appellant under Order 42 rule 5B(6), Rules of the High Court. The issue before the trial judge in an application for judicial review was whether Article 10 of the Hong Kong Bill of Rights was engaged. In support of this contention, the appellant primarily relied on (1) that Town Planning Board proceedings were susceptible to the human rights safeguards envisaged by Article 10 (the "suit at law" argument) and (2) that the requirements of Article 10 were not substantially met by judicial review ("the requirements of full jurisdiction" argument). Mr Lee, leading counsel for the appellant, explains that the submissions he made to the trial judge were calculated to overcome the invidious difficulties in the "suit at law" argument and the "requirements of full jurisdiction" argument. The appellant failed on the former argument. The trial judge did not find it necessary to deal with the latter argument in his dismissal of the judicial review application. The appellant appealed. At the hearing of the appeal, Mr Dykes S.C. intended to make submissions on both arguments and, in consultation with Mr Lee, caused to be filed ex abundanti cautela a Respondents' Notice for the "requirements of full jurisdiction" argument, which was, so counsel was at pains to emphasise, quite unnecessary. With respect to the "suit at law" argument, whilst the appellant failed before the judge, he succeeded on appeal. However, this time the appellant failed on the "requirements of full jurisdiction" argument. Both arguments had to be successfully run to engage Article 10 before the judge and this court on appeal. The appeal was therefore dismissed with an order nisi as to costs.

2. Order 42 rule 5B(6) RHC reads:

"(6) Where a written decision is given pursuant to this rule the Court may make therein an order nisi as to costs and, unless an application has been made to vary that order, that order shall become absolute 14 days after the decision is pronounced."

3. Mr Lee spares no effort in his attempt to make much of the Respondents' Notice. But for that, so counsel submits, the respondents would have lost the appeal. The appellant is desirous of varying the order nisi but was late in making an application. The respondents are unable to question what would appear to be reasonable excuses for dilatoriness on the part of the appellant's solicitors. No real prejudice is caused by the delay. Mention is made of the well-established principle that before an order is drawn up and perfected, a court retains its power to have it recast. The order nisi was an order this court intended to and did make in handing down judgment. The appellant is not seeking a different order from that made in the written judgment handed down. In fact the appellant is determined to take advantage of the permissible variation built into this order nisi out of time. That principle is irrelevant.

4. The question for our consideration is, therefore, whether the time limit laid down by Order 42 rule 5B(6) should be extended by some six days to 17 April 1998 when the appellant purportedly applied pursuant to Order 42 rule 5B(6) for what it regards as a proper order for costs. Rule 5B(6) would implicitly authorise a party to apply to vary an order nisi as to costs within 14 days after a written judgment is handed down. Clearly, the period of 14 days is a time prescribed by RHC for the doing of an act in any proceedings. Order 3 rule 5 and inherent jurisdiction penned in by Order 59 rule 10 would allow such a time to be extended. Whatever consequences flowing from an extension are considerations for the exercise of discretion.

5. Mr Dykes submits that the order nisi as to costs was part of the judgment delivered by this court on 26 March 1998. It took effect on that day. See Order 42 rule 3(1). It is appealable from that date, and Order 3 rule 5 and inherent jurisdiction should not be called in aid to vary an order as to costs which is part of the final judgment. After all, so counsel submits, it has now become absolute. Counsel is able to demonstrate that the date of a variation made after an extension may fall outside the time prescribed for lodging an appeal and that since the order nisi as varied is part of the final judgment, the statutory time for appeal would likely be exceeded. A judgment clearly takes effect from the date of its pronouncement but when a handed-down judgment contains a provisional costs order, the provisional costs order would nevertheless remain tentative, albeit made in a final judgment and the tentative costs order is liable to be re-ventilated as provided for in Order 42 rule 5B(6). The judgment would be a final judgment on which execution may be levied, with further proceedings as to costs to follow. The same situation obtains in a judgment for a debt with costs to be taxed. See Harris v. Jewell [1883] WN 216, where the final judgment for the debt proceeded to execution but costs was thereafter taxed and under Order 47 rule 3 executed on its own after taxation. If an extension were granted for making an application under Order 42 rule 5B(6), the order nisi would not become absolute because it shall become absolute "unless an application has been made to vary" it within the time prescribed or extended. The order nisi may be made absolute if the application is dismissed or otherwise made final subject to some variation if the application succeeds. The order nisi may be altogether replaced. Time for appeal against costs would run from a final costs order and the procedural predicament postulated by Mr Dykes would not arise. In my view, this court has jurisdiction to extend time to the appellant for making an application to vary the order nisi. I would extend time so as to enable the appellant's application to be properly entertained.

6. It is a long standing practice to order costs to follow the event even if legal arguments are not all one way. The issue before the trial judge and this court was whether Article 10 was engaged. It would seem that Mr Lee was obliged to satisfy the judge on both the "suit at law" argument and the "requirements of full jurisdiction" argument in order to introduce Article 10. It is, to say the least, curious that in prosecuting the appeal, the "requirements of full jurisdiction" argument was at one time sought to be eviscerated, so counsel maintains, from the thrust of his basal contention upon which the appellant rested its case under Article 10. For the purposes of the appeal, Mr Lee's full submission to the judge anchored to these essential "suit at law" argument and the "requirements of full jurisdiction" argument was simply irretractable. Both of these two juridical arguments, the "suit at law" argument and the "requirements of full jurisdiction" argument, bore upon the fundamental issue to be addressed before the judge and the Court of Appeal. The formidable obstacles in these two arguments must be cleared to engage Article 10. Neither of them could be rationally, so to speak, cut adrift. Mr Lee would need no respondents' submission to stir him into re-visiting his full basis for invoking Article 10. There seems to be much to be said for the complaint of Mr Dykes, S.C. that he was enticed into filing the Respondent's Notice. These arguments did not raise discrete issues.

7. It is true that the decision of this court touches upon a point of constitutional importance but these proceedings were not prosecuted for posterity. Article 10 was necessary for asserting the claimed property right of the appellant in its substantive case against the respondents. The appellant failed on appeal. I can see no justification for departing from the usual order that costs should follow the event. I would affirm the order nisi as an order absolute in the instant application. As to the costs in this application, I would make an order nisi as to costs, payable by the appellant to the respondents.

Mayo, J.A.:

8. I agree.

Nazareth, V.-P.:

9. I also agree. We accordingly extend time to make application to vary the costs order nisi, but refuse the latter application. That order nisi is accordingly made absolute. As to the costs of the appellant's summons, there will be an order nisi that the Respondents are to have their costs.