CHAU TAM YUET CHING v. DIRECTOR OF LANDS

HCAL 66/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

 NO 66 OF 2012

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DECISION ON COSTS

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1.  I handed down my judgment (“the Judgment”) on 18 July 2012 dismissing the applicant’s leave application for applying judicial review on the basis that the subject decision is not amenable to judicial review.  I further made an order nisi that there be no order as to costs of the application.

2.  In the leave application, Lam J (as the learned judge then was) directed that notice of the hearing be given to the Director as the putative respondent.  The Director attended the hearing and opposed the application.

3.  This is now the Director’s application to vary the costs order nisi to the extent that the applicant shall pay his costs. 

4.  There is no dispute that the general principles applicable in such an application for costs relating to an unsuccessful leave application in judicial review have recently been summarised by Lam J in Leung Kwok Hung v The President of the Legislative Council of the Hong Kong SAR (unrep, HCAL 64/2012, 18 July 2012) at paragraphs 2 to 3 as follows:

“2. The discretion on costs is a broad one and the starting point is that costs in an unsuccessful leave application for judicial review should only be awarded in favour of putative respondent or putative interested party in exceptional cases: see Sky Wide Development v Building Authority [2011] 5 HKLRD 202 and Re Ho Mei Ling (No 2) [2012] 1 HKC 400.

3. What amounts to exceptional circumstances depends on the facts and issues raised in each case. The court should have regard to the public policy on ready access to courts whilst, in exceptional cases, give protection to public bodies and public funds from unnecessary, burdensome and costly litigation. A non-exhaustive list of features indicative of exceptional circumstances was given by Auld LJ in R (Mount Cook Land Ltd) v Westminster City Council [2003] EWCA Civ 1346 at para 76(5). I have cited the passage in Re Ho Mei Ling (No 2) [2012] 1 HKC 400 at para 25 and there is no need for me to repeat the exercise.” (emphasis added)

5.  Tang VP (as he then was) in Sky Wide Development v Building Authority [2011] 5 HKLRD 202 (CA) also emphasises at paragraph 28 that that “it takes unusual circumstances for an award of costs to be made against an applicant for leave and that the Court should be sparing in the exercise of such discretion”.  

6.  In the present application, Mr Anthony Chan for the Director submits that the following features of the leave application render it an exceptional case to justify awarding costs to the Director:

(1) The application amounts to an abuse of process given: 

(a) As early as 22 May 2012, the Director through the Department of Justice wrote to the applicant saying that the application was misconceived as the subject decision was not amendable to judicial review. 

(b) Notwithstanding this, the applicant still proceeded with the application.

(c) The Court eventually dismissed the application on the very basis that the subject complaint related to a private law instead of public law dispute.

(2) The application clearly had no merits and was from the beginning a hopeless one, as underlined by the applicant’s last minute abandonment of various original grounds framed in the Form 86[1].

(3) The applicant’s application for judicial review was made solely to pursue her own personal gain rather than to advance or safeguard any public interest or constitutional rights.

(4) The application for judicial review and an ex parte interim injunction were made late as observed by Lam J in hearing and refusing the injunction application on 22 May 2012.

(5) The applicant was in breach of PD SL3 in failing to lodge the hearing bundles, and the Director had to do it for her.  She was further in breach of the PD in lodging with the court her skeleton late. 

(6) The Director appeared at the direction of the court and did provide assistance to the Court.

(7) The applicant had in effect the advantage of an early substantive hearing and failed.

7.  With respect to Mr Chan, I am not satisfied that the above constitute exceptional circumstances in the present case for the purpose of considering costs:

(1) As far as I can see, the factors set out at paragraph 6(1) to (3) above in substance are a submission that the present leave application is clearly and entirely hopeless and vexatious, and the applicant ought to have been aware of this.  It is only then that would make the application (together with the purpose of advancing a personal gain) an abuse of process. 

(2) However, in light of my discussion in the Judgment for the reasons in dismissing the leave application, I would not say the application (with the arguments advanced therein) is clearly an abuse of process.  

(3) Insofar as factor (4) is concerned, even Mr Chan cannot point to anything in substance to say why it is said that the leave application to apply for judicial review was taken out late.  There is no transcript placed before me to show what Lam J in fact said in this regard at the injunction application hearing and in any event under what context.  There is thus nothing in this factor for the purpose of deciding whether there are exceptional circumstances in the leave application to warrant awarding costs against the applicant.

(4) Factor (5) by itself cannot in my view constitute exceptional circumstances for the present purpose if the other factors do not.

(5) Factor (6) applies in most of the cases where the putative respondent is asked by the court to attend the leave application hearing, and the court is always grateful for such assistance.  However, as mentioned above, in all such applications which are unsuccessful, the starting position is still that no costs should be awarded to the putative respondent other than in exceptional cases.  I am of course not saying that there would not be a situation where the putative respondent has rendered such exceptional or very significant assistance to the court in determining a leave application that this factor alone may justify an award of costs, but I do not think the present case is one that falls within such exceptionality.

(6) For factor (7), I also do not think the leave application hearing can be regarded as a “rolled-up” substantive hearing of the judicial review application proper.  As I mentioned at paragraph 55 of the Judgment, if the relevant decisions were amendable to judicial review, I would not have refused leave on the basis (as further contended by the Director) that the intended judicial review was academic as there were no factual allegations made in the draft amended Form 86 that could arguably show that there were no breaches of the 2 GLLS.  

8.  Mr Chan has further advanced an alternative position on costs today.  He submits that since the grounds based on procedural unfairness/irregularity and Wednesbury unreasonableness as set out in the original Form 86 were clearly hopeless and were abandoned at the hearing, he invites the court to at least award costs to the putative respondent in relation to these abandoned grounds. 

9.  As far as I can see from the putative respondent’s skeleton (which was filed before applicant’s proposed amendments of the Form 86), the substantive and main arguments raised to oppose the leave application were still whether the matter was amenable to judicial review.  These submissions were equally relevant and helpful in dealing with the applicant’s leave application made based on the draft Amended Form 86, and which were accepted by the Court to refuse the leave application.  

10.  For the putative respondent’s submissions raised in the skeleton relation to the Wednesbury unreasonableness ground, they were very short which occupy only six paragraphs of the skeleton submissions.

11.  As such, I do not think the abandonment of these other grounds in the original Form 86 constitutes such exceptional circumstances to justify awarding the putative respondent costs in relation to these grounds.

12.  For all the above reasons, I do not find any exceptional circumstances in the present leave application to justify a departure from the general position and to award costs to the putative respondent.

13.  I therefore refuse the application to vary the costs order nisi.   The order that there be no order as to costs of the leave application thus becomes absolute herein. 

14.  As agreed by the parties, costs of this application should also be part of the costs of the leave application, which effectively means that there be also no order as to costs of this application.

15.  I thank counsel for their assistance.