PENNY'S BAY INVESTMENT CO LTD v. DIRECTOR OF LANDS

LDMR 23/1999

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION UNDER FORESHORE

AND SEA-BED (RECLAMATIONS) ORDINANCE

APPLICATION NO. LDMR 23 OF 1999

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AND

LDMR 1/2005

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION UNDER FORESHORE

AND SEA-BED (RECLAMATIONS) ORDINANCE

APPLICATION NO. LDMR 1 OF 2005

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(Heard together)

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RULING

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1. As I have said - and I think all parties agree - that what directions I should give in light of the determination of the preliminary issues and the fact that there is a pending appeal to the Court of Appeal against my decision is a matter of case management.  I bear in mind the general principle that the fact that there is an appeal does not mean there is a stay of proceedings.  At today's hearing, I do not understand any party to be making an application for a stay of proceedings.  At the same time, in the exercise of my power of case management, I must bear in mind that there is a pending appeal and I must also bear in mind the rationale for having matters decided by way of preliminary issues as set out in my ruling when I permit the matter be proceeded by way of preliminary issues. 

2. It is a balancing exercise.  On the one hand, I have to consider that costs should not be incurred unnecessarily and, in this regard, I bear in mind the submissions of Mr Yim and also the written submissions of Mr Yim together with his learned leader, that if we were to proceed with a full-blown hearing of the matter based on my determination of the preliminary issues, or go ahead with substantive preparations for that hearing, there is a risk that some costs might be wasted if the appeal is successful.  That is one of the matters that I must bear in mind in the weighing exercise. 

3. On the other hand, one must have regard to the expeditious disposal of cases.  As a general rule, as I said, the fact that there is an appeal - even if it is an appeal against a determination of preliminary issues - does not mean that proceedings in the first instance court have to be stayed.  It all depends on the facts of each particular case and I readily recognise the importance or the impact that the determination of the preliminary issues might have in terms of the preparation of the case in terms of evidence. 

4. But as I said this morning, I can see no reason why in terms of the formulation of the case by way of pleadings, the matter cannot be proceeded with in the meantime.  Provided we are confined to that, the costs that might be incurred or that might be wasted as a result of an appeal being allowed could not be too significant and that can be addressed by way of an appropriate order for costs eventually.  That will certainly bring some progress in terms of the general preparation in these proceedings, irrespective of the result of the appeal. 

5. Mr Chang SC urged this court to go further.  In his draft directions, he asked for directions for filing of supplemental submission indicating not only amendments to pleadings but also to the nature of each parties case or alternative case and the nature of evidence or further evidence. 

6. While I am quite confident that it is the right case-management decision to have amendment to the pleadings to be dealt with at this stage, I am not that certain in terms of the other matters.  To start with, without sight of the proposed amendments and also without knowing whether leave for those amendments would be granted and how the respondent will be responding in terms of amendments to his own pleadings, I cannot say at this stage whether it is necessary to have the matters elaborated by way of a document called "The Nature of the Parties' Case".  Still less can I contemplate what would be the shape or form of the evidence that will be necessary.  To enable this court or this tribunal to exercise its case-management power properly, it is better to follow the conventional way of dealing with these matters step by step, that is, firstly, we should have the issues identified by way of pleadings first.

7. Another problem with Mr Chang's proposed directions is that counsel suggests the amendments be indicated by way of supplemental submission instead of putting forward a formal application for leave to amend.  There might be some concern about prejudicing the right of appeal but, as I said, if the amendment is formulated clearly on a basis without prejudice to the right of appeal, I do not believe there would be problems.  Even if the amendments are considered and even if leave to amend is granted, so long as it is clear in everybody's mind that it is without prejudice to the right of appeal, I do not think a formulation of the amendments in the pleadings would adversely affect the applicant's appeal.  If necessary, after the appeal, pleading can be amended again in the light of the decision of the Court of Appeal. 

8. I have some concern about whether a respondent should be required to respond to an indication of a proposed amendment without the amendments being put forward by way of an application for leave to appeal and without leave having been granted.  If it is just being put forward by way of supplemental submissions, parties can always change their position with regard to these proposed documents.  I do not think that is the correct way of proceeding with the matter. 

9. What I will do is to give some directions about the applicant's filing an application for leave to amend at this stage.  Then we can take it from there after the application has been taken out.  If eventually amendments were granted, then we can consider whether the case should proceed further.  After matters have been crystallised in the form of amended pleadings, the court will be in a better position to consider in the light of the amended pleadings what are the issues, what are the likely shapes and forms of evidence and, whether in the light of the fact that the appeal is going to be heard in September next year any other steps should be taken in terms of preparation of the case for hearing and whether the case should be set down for hearing before the appeal is disposed of.  But these are decisions that this tribunal cannot properly entertain at this stage.  Given the complexity of this case, I think we should proceed step by step. 

(Discussion between the parties re documents already filed and future hearing dates)