CHAN YAT SIU AND ANOTHER v. THE APPEAL TRIBUNAL (BUILDINGS)

HCAL 2281/2018

[2023] HKCFI 35

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2281 OF 2018

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D E C I S I O N

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A.  Introduction

1.  By a Form 86 dated 19 October 2018, the Applicants sought leave to apply for judicial review in relation to various costs decisions of the Putative Respondent, the Appeal Tribunal (Buildings) (“BAT”), all made on 19 July 2018.

2.  The Putative Interested Party is the Building Authority (“BA”).

3.  On 23 October 2018, Chow J (as he then was) directed the parties to submit agreed proposed directions for the conduct of the proceedings within 14 days. Thereafter, the parties exchange proposed directions on 14 and 19 November 2018 respectively. However, no directions were ever proposed to the Court.

4.  Indeed, since then, no further action has been taken by the Applicants, and the case has remained dormant. As the circumstances outlined below will indicate, this is perhaps no surprise. In any event, by letter dated 19 December 2022 from the Department of Justice (“DoJ”) on behalf of the BA, the Court has now been invited to refuse leave to apply for judicial review, or alternatively to give directions for further conduct of the case.

5.  Despite the passage of more than two weeks, no response to that letter has been received by the Court from the solicitors (“SKW”) on record for the Applicants in these proceedings. Nevertheless, it seems to me in the circumstances I can now deal with this matter on paper.

6.  This is my Decision.

B.  History

7.  As already stated, the intended impugned decisions are decisions related to discretionary costs orders, which is not ordinarily fertile ground for intervention by a court of judicial review. In any event, there seems to have been some recognition on the part of the Applicants that the Form 86 had perhaps been issued prematurely. This is because in SKW’s letter dated 14 November 2018, setting out its proposed directions for the further conduct of the proceedings, the first proposed direction related to a stay of the proceedings pending the BAT’s determination of the relevant questions of costs (as had been indicated by its letter dated 31 October 2018).

8.  Whilst I note that the DoJ objected to any need for the proceedings to be stayed, what subsequently happened was that the costs matters were in fact revisited by the BAT in the underlying appeal, as follows:

(1)  Even prior to the issuing of the Form 86 in these proceedings, SKW had by letter dated 11 October 2018 requested the BAT for a review and variation of its costs order for the underlying appeals.

(2)  Written submissions were subsequently submitted in accordance with directions given by the BAT.

(3)  On 4 March 2019, the BAT rejected the Applicants’ application to vary the costs order.

(4)  On 19 February 2021, the BA applied to the BAT for an order for costs against the Applicants regarding the appeals.

(5)  On 24 March 2021, SKW submitted a List of Objections.

(6)  On 8 June 2021, the BAT ordered the Applicant to pay the BA’s costs, assessed in the sum of HK$142,931.

(7)  On 17 June 2021, SKW wrote to the BAT disagreeing with the assessed costs and requesting a full taxation hearing.

(8)  On 23 July 2021, the BAT issued directions (amongst other things) that the Applicants had leave to file written objections to the assessed costs within 14 days.

(9)  However, the Applicant never filed any written objections to the assessed costs.

(10)  Instead, on 30 August 2021, the Applicants settled the assessed costs with interest (apparently by a cheque from new solicitors).

9.  As I have already stated, in those circumstances it is not surprising that no further steps have been taken in these proceedings. However, SKW remain on record as the solicitors for the Applicants, and the Applicants have taken no steps themselves to bring these proceedings to a conclusion.

10.  By letters dated 27 September 2021 and 16 November 2021, the DoJ requested then urged confirmation as to the Applicants’ intention to proceed with these proceedings. No reply has ever been received.

C.  Consequences

11.  In those circumstances, I have no hesitation in disposing of this matter on paper (notwithstanding that the Form 86 originally requested an oral hearing if leave were not to be granted on paper), and in dismissing the application for leave to apply for judicial review.

12.  First, there is significant and undue delay in the proceedings, which were now commenced more than four years ago and in which the last active correspondence from the Applicants was also more than four years ago (notwithstanding that SKW remained on record as acting for the Applicants, and were clearly still active in representing them in the underlying appeals at least as late as June 2021). The delay is inexcusable, and indeed no attempted excuse has been offered. The delay is also more egregious in the context of an application for judicial review, where the time for pursuing such an application is limited and where the proper administration of affairs can be significantly prejudiced by delay. Just as importantly, I agree with the DoJ that it is plain that the Applicants have no intention to proceed with the application in these proceedings.

13.  Secondly, in light of the activity in the underlying appeals leading to the payment of the costs in issue, these proceedings appear to be academic and unnecessary. Indeed, as already indicated, the potential academic nature of them (or prematurity) was recognised by SKW for the Applicants at an early stage. There is nothing in the proposed challenge which would persuade this Court to exercise the discretion to grant leave in the circumstances.

14.  Thirdly, there is some force in the point made by the DoJ that the Applicants failed to show reasonable grounds on why the BAT erred in its cost decisions in any event. Nevertheless, in light of the previous two points, I do not think I need to place significant weight on this third element.

D.  Disposition

15.  The Applicants’ application for leave to apply for judicial review is dismissed.

16.  I make no order as to costs.