Leung Yin Ling v. The Incorporated Owners of No. 165 , Wong Nai Chung Road

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

LDBMNo: 63 of 2000

------------------------------

Reasons For Decision

------------------------------

1. The Respondent obtained a costs order of this Tribunal and submitted its bill to this Tribunal for taxation. The taxation hearing was before the Registrar of this Tribunal and a subsequent review was also heard. Dissatisfied with the ruling in the review, the Applicant applied to a Presiding Officer for further review in pursuance of Order 62 of the Rules of the High Court.

2. Taxation for the Lands Tribunal Costs had always been dealt with in the High Court before the recent change of practice. At the first day of further review hearing, I was given to understand the change was well supported by a recent decision of Judge Z E Li and practice directions. Unfortunately the material I required was not available before the parties finished their submissions. The parties did not raise the jurisdiction point before me and in order not to waste any more time unnecessarily, I gave my ruling assuming I had jurisdiction to hear the further review. Before the end of the day I was given the materials concerning the change of practice. On a close analysis of the judgment of Judge Z. E. Li , and the materials effecting the change of practice, I came to realize there was no legal basis for the change of practice. It is basic that jurisdiction cannot be conferred on this Tribunal by consent, implied or express, I was left with no choice but to review my decision inviting the parties for argument on the point of jurisdiction.

3. At the review hearing, Mr. Wu, counsel for the Applicant submitted that the decision of Judge Z. E. Li in The Incorporated Owners of Honour Building V Lou Chui Sim & another LDBM NO. 266 of 1999 was correct and should be followed. The contention by Mr. Tam for the Respondent was that the Registrar of the Tribunal has jurisdiction and power to tax costs but that a Presiding Officer had no jurisdiction or power to hear the further review. Mr. Tam submitted without argument that the power of further review lied to the High Court Judge.

4. The parties cannot by consent conferred on the Tribunal jurisdiction which the Tribunal does not have. Conversely, the parties cannot exclude the jurisdiction of the Tribunal by consent. Therefore even though it is common ground that I have no jurisdiction to hear the further review, it is still a live issue and I have to give a ruling on the jurisdiction point.

5. The Lands Tribunal is a statutory creature and as such therefore has no inherent jurisdiction. This Tribunal has no inherent jurisdiction to award costs or to tax costs so awarded. Jurisdiction has been extended on many occasions by the various ordinances. The jurisdiction and power to award costs was conferred on the Tribunal when it was established in 1974. The relevant provision is now in Section 12(1) of the Lands Tribunal Ordinance. No provision was provided for taxation of costs until the insertion of Section 12(2) in 1982. Since then taxation was proceeded with in the High Court until the recent change of practice initiated apparently in the name of the Registrar of the Lands Tribunal and not by the Practice Directions of the Chief Justice.

6. Section 12 (2) provides that:

"Subject to any rules made by the Chief Justice under Section 10(3), Order 62 of the Rules of the High Court shall apply to award, taxation, and recovery of costs in the Tribunal"

Order 62 of the Rules of the High Court stipulates the principles in awarding costs and which principes the Tribunal must apply when awarding costs. The same Order also stipulated procedures and principles of taxation. The clear wording of Section 12 and the provisions of Order 62 mean that both the procedures and the legal principles of taxation must apply to taxation of costs in the Lands Tribunal. Order 62 rule 21 provided for the mode of the beginning taxation proceeding It would be absurd and contrary to the plain meaning of section 12 that the procedure of taxation should not apply. Effect must be given to it in full and not in part. One cannot say that only the legal principles of taxation applied but not the procedure. Order 62 applied to taxation of costs awarded in High Court proceedings and other tribunals and it is nothing unusual that section 12(2) entrusted the taxation of Lands Tribunal costs to the High Court. It should be noted the words to effect that Order 62 should apply mutatis mutandis to the Lands Tribunal are absent in section 12(2). Wording to that effect was used in Rule 9 of the old District Court Civil Procedure (General) Rules when it sought to incorporate the application of provisions of the High Court rules into the District Court. In the instant case, there is no justification to imply such words into section 12(2) and it cannot be the legislative intent.

7. Section 4 of the Lands Tribunal Ordinance provides for the constitution of the Lands Tribunal which consists of the President, Presiding Officers, and Members. When the Lands Tribunal was established in 1974, (Ordinance No. 62 of 1974) it consisted of a President and Members and the constitution of the Tribunal was extended on different occasions later to include all District Judges and Deputy District Judges as ex-officio Presiding Officers. The office of Registrar of the Lands Tribunal was not established until 1977 (Ordinance No. 21 of 1977) about three years after the establishment of the Tribunal. The same ordinance provided for the attachment of deputy registrars, assistant registrars. In 1982 the office of the Registrar of the Lands Tribunal was in effect abolished by Ordinance No. 49 of 1982. Instead the Registrar of the District Court was attached to the Lands Tribunal to perform the functions of the registrar of the Tribunal. The power of the registrar, deputy registrar, or assistant registrar was provided by sections 7A which reads:

"(2) In addition to the powers and duties conferred or imposed by or under this Ordinance or any other enactment, the registrar, any deputy registrar, assistant registrar,....attached to the Tribunal may exercise such powers and perform such duties, insofar as the same are applicable to the business of the Tribunal, as those respectively exercised or performed by the registrar, deputy registrar, assistant registrar....attached to the High Court.

" (3) Any act which by or under the Ordinance or any other enactment is required or authorized to be done by the registrar may be performed by a deputy registrar or assistant registrar of the Tribunal ....."

In many ways the powers and duties of the District Court Registrar and other officers mirror those of the High Court Registrar. However these powers and duties are qualified and restricted by the words " insofar as the same are applicable to the business of the Tribunal". Furthermore it is important not to confuse jurisdiction of a court over certain matters with the powers when exercising such jurisdiction. By definition, Tribunal consists only of the President, Presiding Officers and Members. The District Court Registrar even when attached to the Lands Tribunal as one of its officers is not the constituent member of the Tribunal within the meaning of Lands Tribunal Ordinance. Taxation is a separate proceedings and has never been the business of the President, Presiding Officers or Members. There were good reasons for it. At the time of the enactment of section 12 and the Order 62 of the High Court Rules, the holder of the office of the District Court Registrar did not need to be qualified in law. It was only recently that District Court Registrar was made a judicial officer many years after the enactment of section12(2) and the present Order 62. In taxation of costs in proceedings other than before the High Court, the taxing master was specifically empowered to control the procedure and costs of the taxation proceedings ( see Order 62 rule 2 ). Therefore for many years before the recent enactment making District Court Registrar a judicial officer, taxation of Tribunal costs was not be done by him or by the Tribunal (i.e. the President, Presiding Officers or Members). Order 62 provided for a two-tier procedure with a right to apply to the High Court Judge for a further review of (in the nature of appeal) the decision the taxing master. At the time of the enactment of section 12(2) and Order 62 it could not have been intended by the legislature that two-tier system and procedure for taxation proceedings modelling after that in High Court. It is difficult to imagine that the legislature can foresee in so many years in advance the development that the District Court Registrar would be made a judicial officer after so many years when section 12(2) and Order 62 were enacted. For this reason it cannot be inferred that contrary to the clear wording of section 12 and Order 62 the intent of the legislature was to confer the jurisdiction to tax its own costs on the Tribunal itself.

8. The conclusion must be that whatever the approach is adopted, the literal or purposive, section 12(2) and Order 62 of the Rules of the High Court do not confer on the Tribunal the jurisdiction or the power to tax its own costs. Therefore it is not the business of this Tribunal to tax its own costs and the registrar attached to this Tribunal has no jurisdiction or power to tax its own costs. The fact that the District Court Registrar is a qualified in law and is now a judicial officer is quite beside the point. This is basically the reason given by the District Court Registrar in his decision Incorporated Owners of Tropicana Gardens V Tropicana Gardens Management Ltd. The learned Registrar in effect said if a High Court Master can tax costs, he as a judicial officer can also tax costs. If section 7A is the basis for that proposition, the flaw of the argument can readily be seen by comparing deputy registrars or assistant registrars in the High Court and in the Tribunal. I hope the learned Registrar is not suggesting the assistant registrar of the Lands Tribunal can perform duties of taxing matter. I think the Registrar was relying heavily on the fact that he was now a judicial officer. I have no doubt that whoever was appointed to office of District Court Registrar must be presumed to be able to handle taxation matter. Ability does not come hand in hand with jurisdiction. The fact the District Court Registrar is now more able does not mean he would have greater jurisdiction than his predecessors who were not judicial officers. Looking the provisions of the Lands Tribunal Ordinance, the registrar performed no judicial function before section 12(2) was enacted nor thereafter until recently when assumed the duty (without legal basis) of a Taxing Master. His duty in the Lands Tribunal has always been one of ministerial and not judicial. It simply cannot be the case the legislature intended to confer such important constitutional change by implication omitting express words. With due respect to the District Court Registrar, the case of Incorporated Owners of Tropicana Gardens V Tropicana Gardens Management Ltd (LDBM 374 of 1998) was wrongly decided.

9. The taxation purported to be made in this Tribunal (which does not include the registrar attached to this Tribunal) was irregular and must be set aside. I was given to understand that those who act for the Respondent decided independently without being influenced by notification of change of practice by the registrar to initiate taxation proceedings in this Tribunal. However the Applicant intended to submit the further review to a High Court Judge but was dissuaded not to do so by the registry staff and by a copy of an internal memo the staff gave them. In view of circumstances I think it is difficult to dish out the blame to the parties in any mathematical precision or certainty. The appropriate order for costs should be that the Respondent do pay one third of the costs of the entire taxation proceedings with certificate for counsel and I so ordered.